M. C. JAIN, J. The present appeal has been preferred by the appellant Munna against the judgment and order dated 23-12-1980 passed by Sri Usha Kant Verma, the then III Addl. Sessions Judge, Kanpur in ST No. 186 of 1978. He has been convicted under Section 302 IPC and sentenced to life imprisonment. 2. Presently, the appellant is on bail and is represented by Sri H. S. Mishra, Advocate. None appeared from the side of the appellant to argue the appeal at the revision of list. We have heard learned AGA from the side of the State in opposition of the appeal and carefully examined the record of the case, which has been summoned before us. The appeal is being decided on merits having regard to different relevant aspects of the matter. 3. It may also be stated before proceeding further that the appellant had earlier also been convicted and sentenced to life imprisonment under Section 302 IPC for this felony. He came up in appeal before this Court and a Division Bench of this Court set aside his conviction and sentence on the ground that he could not properly defend himself as his lawyer ditched him at the last moment. The matter was remanded for retrial in accordance with law. It was under these circumstances that he was again tried and came to be convicted and sentenced by the judgment impugned in this appeal. 4. The prosecution case was that earlier to the present incident, the appellant Munna along with Bachcha, Hirday Pandey and one more persons had assaulted Sheo Charan Lal Sahgal, PW-4 (Manager of Anupam Talkies) on 30-5-1978 at about 11. 30 a. m. , because he would not permit free entry to them or allow them to sell cinema tickets in black. He had also refused to give five tickets which they had asked for. In that incident, Kundan Lal (deceased of the present incident) was cited as an eye-witness. The appellant was asking Kundan Lal not to depose as a witness against him but he had declined to oblige him. On 13th June, 1978 also at about 2. 00 p. m. in the canteen of Anupam Talkies, he again commanded Kundan Lal not to give evidence against him. Kundan Lal was however, adamant to stand as a witness. The appellant extended a threat to him that he would also be assaulted. On 13th June, 1978 also at about 2. 00 p. m. in the canteen of Anupam Talkies, he again commanded Kundan Lal not to give evidence against him. Kundan Lal was however, adamant to stand as a witness. The appellant extended a threat to him that he would also be assaulted. Kundan Lal and Sheo Charan Lal belittled him (appellant) by ridiculing his design as being beyond proportions for an insignificant fellow like him. The same night, at about midnight the appellant Munna translated his threat into reality by inflicting two stab wounds on Kundan Lal near the shop of Rama Shanker, confectioner, when after taking his meals in Prem Hotel and betel at the shop of Chhotey, he was returning to Anupam Talkies. While stabbing the appellant chided Kundan Lal that it was for his adamance to be a witness. Sheo Lal Bajpai PW- 7 (informant) was accompanying Kundan Lal at that time. He as well as Yogendra Nath and Sheo Asrey raised alarm. The appellant made his escape good towards Juhi Garha Rakhi Mandi. Sheo Lal Bajpai went to police station which was only 2- 1/2 furlongs away and lodged the FIR within 10 minutes of the incident i. e. at 00. 25 hours on 14-6-1978. 5. The police reached the scene of occurrence. Kundan Lal who was till alive was taken to UHM Hospital and examined there at 1. 15 a. m. by Dr. G. K. Gupta PW-2. The following two injuries were found on his person : (1) Incised wound 3. 75 cm x 1 cm x depth not probed, 2. 75 cm above Umblicus, eleptical in shape. (2) Incised wound 3 cm x 1. 4 cm x depth not probed on right side abdomen, 17 cm below right nipple, shape elleptical. 6. The injuries were fresh and had been caused by sharp edged weapon. 7. A note was sent from the Hospital for recording the dying declaration of the victim. Smt. Alka Srivastava, Executive Magistrate, PW-1 reached the Hospital and got him examined by Dr. N. Hasan PW- 6 who certified that he was in fit mental state. She thereafter recorded his dying declaration Ex. Ka-1 on 14-6-1978 between 10. 00 and 10. 20 a. m. The victim was declared to be in fit mental condition throughout his dying declaration as certified by the doctor named above at the conclusion of his statement. N. Hasan PW- 6 who certified that he was in fit mental state. She thereafter recorded his dying declaration Ex. Ka-1 on 14-6-1978 between 10. 00 and 10. 20 a. m. The victim was declared to be in fit mental condition throughout his dying declaration as certified by the doctor named above at the conclusion of his statement. The dying declaration of the victim is to the effect that it was the appellant Munna who had stabbed him. 8. He, however, died on 16-6-1978 in UHM Hospital and autopsy on his dead-body was conducted on 17-6-1978 at 5. 20 p. m. by Dr. S. S. Agarwal, PW-9. He was about 36 years of age. The following ante- mortem injuries were found on his person : (1) Stitched wound 26 cm long as shown in figure (in the post-mortem report) with 19 stitches extending from right towards left side abdomen, 1 cm away from umbilicus. (2) Stitched wound 15 cm long as shown in figure (in the post-mortem report) right side abdomen. 11 cm below right nipple with 14 stitches. 9. The cause of death was shock and haemorrhage as result of ante-mortem injuries. The injuries inflicted on his person was sufficient to cause death in ordinary and natural course. 10. The defence was of denial. 11. The appellant, however, admitted that the deceased was a booking clerk and Sheo Charan Lal Sahgal PW-4 was the Manager of Anupam Talkies. According to him, he resided in the lane leading to Juhi Garha Rakhi Mandi at a distance of 2 furlongs from Anupam Talkies. He denied the knowledge of the earlier report lodged against him by Sheo Charan Lal Sahgal and also that Kundan Lal had been cited as a witness against him. He did not dispute that sweet shop of Rama Shanker was near Anupam Talkies. According to him, a false report had been lodged by Sheo Lal Bajpai, PW-7 at the instance of Manager of Anupam Talkies. He also asserted that many persons named Munna were living in the vicinity of Anupam Talkies. It may be stated that the obvious purpose was to get away from the dying declaration of the deceased. He examined one Satya Deo Pandey DW-1 also that several persons named Munna lived nearby Anupam Talkies. He also asserted that many persons named Munna were living in the vicinity of Anupam Talkies. It may be stated that the obvious purpose was to get away from the dying declaration of the deceased. He examined one Satya Deo Pandey DW-1 also that several persons named Munna lived nearby Anupam Talkies. It was also his defence that he had declined to sell the tickets in black at the behest of Sheo Charan Lal Sahgal, PW-4. He got him turned out of the canteen of Anupam Talkies and also got him once arrested. 12. To pick up the thread, the prosecution in all examined 10 witnesses including the Magistrate recording the dying declaration, doctors, evidence relating to investigation-motive and the evidence relating to actual incident. 13. We take up the question of motive first. Motive has come forth through Sheo Charan Lal Sahgal PW- 4 that on 30-5-1978 at about 11. 30 a. m. the appellant along with Bachcha, Hirday Pandey and one another had commanded him to give tickets for selling in black and had beaten him up when he declined. He proved the FIR that he had lodged regarding this earlier incident. The deceased of the present felony Kundan Lal had been cited as an eye-witness of that incident and the accused wanted that he should not depose as a prosecution witness of that incident. It also came to be stated by him that on 13-6-1978 at about 2. 00 p. m. in the canteen of Anupam Talkies the accused had threatened to beat up Kundan Lal if he dared to appear as a witness against him. He was present at that time and he himself and Kundan Lal jeered at the accused Munna for posting to be so daring. So, this was the background for the commission of this crime of murder of Kundan Lal by the accused who was infuriated and feeling insulted for disobedience of his command by the deceased not to appear as witness in the case of assault of the Manager of the talkies. So, this was the background for the commission of this crime of murder of Kundan Lal by the accused who was infuriated and feeling insulted for disobedience of his command by the deceased not to appear as witness in the case of assault of the Manager of the talkies. It deserves mention that in his dying declaration the deceased stated that 25 or 26 days before the incident, the accused Hirdey Pandey, Bachcha Lal, Raja and Munna Lal were asking the Manager for tickets to sell in black and he (Manager) had been beaten up on his not obliging them and further that he was a witness of that incident. He specifically stated that the accused wanted him not to stand as a witness of that incident. 14. It should be observed that the deceased was booking clerk in Anupam Talkies and there was nothing unusual that his sympathy was with the Manager who had been beaten up by the accused and his associates when he declined to abide by their unjust and illegal demand to give tickets to them for selling in black. Thus, there was clear motive on the part of the accused to commit this crime. 15. Further, the dying declaration of the deceased recorded by Smt. Alka Srivastava, the Executive Magistrate PW-1 on 17-6-1978 between 10. 00 a. m. and 10. 20 a. m. is a very important piece of evidence clinchingly establishing the accused to be the author of this crime. The dying declaration is in question and answer form which had been recorded by the said Magistrate when he was in perfect mental state as certified by Dr. N. Hasan, PW-6. The gist of the dying declaration of the deceased is that when he was returning from the hotel of Prem Babu, the accused Munna inflicted knife injuries on the front and right of side the stomach ; that the accused Munna resided at a distance of 50-60 steps from Anupam Talkies ; that the accused along with Hirdey Pandey, Bachcha Lal and Raja had beaten up the Manager of Anupam Talkies 25-26 days earlier as he did not permit them to see pictures without ticket and to sell tickets in black ; that he was a witness of that incident and Munna and his associates did not want him that he should depose as a witness against them in that connection. It was this reason that Munna accused stabbed him. He disclosed the time of incident as about 12. 00 Oclock in the night and also stated that the police had reached the scene of occurrence and had brought him to the Hospital. 16. It should be stated in this connection that Satya Deo Pandey DW-1 had unnecessarily tried to create a confusion about the identity of the accused by saying that several persons named Munna resided in the vicinity of Anupam Talkies. It is gleaned from the testimony of the Manager of Anupam Talkies that he had instituted a case against accused regarding his assault. However, Satya Deo Pandey DW-1 denied the knowledge that Kundan Lal was booking clerk in Anupam Talkies. In cross-examination, he admitted that he knew accused Munna from his childhood and that he was sympathetic to him. We do not have the slightest doubt that he came up to make an attempt to help the accused at his behest. His deposition trying to create confusion about the identity of the accused does not deserve a moments attention and has rightly been discarded by the trial Judge. In fact, the accused was the person against whom the Manager of the talkies had earlier lodged the FIR regarding his assault in which charge- sheet had been submitted with Kundan Lal shown as a witness of the incident and it was the same person who stabbed to death Kundan Lal as a sequel to his refusal to oblige him to stand as a witness of that incident of assault. It is clearly established by the testimony of the Manager of talkies, Sheo Charan Lal Sahgal PW-4 and dying declaration of the deceased Kundan Lal. 17. A few words need to be stated about Sheo Lal Bajpai PW-7 examined by the prosecution as eye- witness. He was also the maker of the FIR. True, he was declared hostile by the prosecution when he gave out that he had written the FIR at the dictation of Daroga. It may be pointed out that at the first trial of the accused before Sri L. R. Kohli, the then III Additional Sessions Judge, Kanpur he was examined as PW-1 on 2-2-1979. True, he was declared hostile by the prosecution when he gave out that he had written the FIR at the dictation of Daroga. It may be pointed out that at the first trial of the accused before Sri L. R. Kohli, the then III Additional Sessions Judge, Kanpur he was examined as PW-1 on 2-2-1979. Then also he was hesitant to support the prosecution case, but had admitted his presence at the spot and further that Kundan Lal had told him at that very time that he had been stabbed by the accused Munna. While deposing as PW-7 on retrial on 25-11-80, he resiled from his this statement made on oath before Sri L. R. Kohli. He, however, admitted in his deposition at the subsequent trial that he was the autoor of the FIR lodged at 12. 25 a. m. on 14-6-1978 and also that he had seen Kundan Lal lying in injured condition in front of the sweet meat shop of Rama Shankar. He also deposed in reply to Court question that at a distance of 10-15 steps from there a bulb was lighted at a pole at the time of incident. It is obvious that with passage of time this witness became emboldened to completely subdue his conscience and attempted to disturb the prosecution case. He had the audacity even to deny his earlier statement made on oath before Sri L. R. Kohli who tried the accused in first instance. There is obvious reason for it. He was also booking clerk in Anupam talkies. It is established from his cross- examination that Sheo Charan Lal Sahgal, Manager of Anupam Talkies had instituted a case against him for embezzlement and that he was no more working as booking clerk in the talkies. It admits no doubt that Sheo Lal Bajpai crossed over to the side of the accused because both he and the accused had command hostility against Sheo Charan Lal Sahgal with whom Kundan Lal sided. Therefore, on a careful analysis, we are of the opinion that the prosecution case does not receive any jerk by taking somersault by this witness, namely, Sheo Lal Bajpai PW-7. 18. Therefore, on a careful analysis, we are of the opinion that the prosecution case does not receive any jerk by taking somersault by this witness, namely, Sheo Lal Bajpai PW-7. 18. On cumulative consideration, we are in agreement with the trial Judge that it was proved to the hilt and beyond even a ray of doubt that the accused committed the murder of unarmed Kundan Lal on the given time, date and place. He has rightly been convicted under Section 302 IPC with the sentence of life imprisonment imposed on him. 19. Before taking leave of this appeal, we would like to place it on record that the accused has mocked at law as it clear from his conduct. At his first trial also he was found to be guilty and in appeal before this Court, the ground was that he could not properly defend himself as his lawyer ditched him at the last moment. When the case was remanded for retrial he was summoned from Jail where he was lodged. He lamented his inability to engage a lawyer and one Sri Brij Kishore Malhotra was appointed as amicus curiae to defend him. He cross-examined Smt. Alka Srivastava, Executive Magistrate PW-1 who had recorded the dying declaration of the deceased. Thereafter, the accused submitted before the trial Court on 21-8-80 that he had engaged lawyer and he would not like to be defended by Sri Brij Kishore Malhotra amicus curiae. Thus, he engaged a senior lawyer to defend him. On being convicted at the second trial, he preferred this appeal form Jail and then engaged a lawyer Sri H. S. Mishra. He was ordered to be released on bail on 11-2-1988 on the ground that he was in Jail since 1978. On being released on bail, he did not care to get it argued by his Counsel. We have just related these facts to place on record the conduct of accused appellant. Any way, the appeal has been judged on merits from all the relevant angles as discussed hereinabove and on thorough analysis and scrutiny of the evidence, we have found it to be devoid of merits. 20. Resultantly, the appeal is dismissed. Appellant Munna is on bail. The CMM Kanpur Nagar shall cause him to be arrested and lodged in Jail to serve out the sentence of life imprisonment awarded to him under Section 302 IPC. 21. 20. Resultantly, the appeal is dismissed. Appellant Munna is on bail. The CMM Kanpur Nagar shall cause him to be arrested and lodged in Jail to serve out the sentence of life imprisonment awarded to him under Section 302 IPC. 21. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months from the date of receipt. Appeal dismissed. .