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2018 DIGILAW 760 (ALL)

PAPPU v. STATE OF U. P.

2018-03-30

RAJESH DAYAL KHARE, RAJIV JOSHI

body2018
JUDGMENT : (Delivered by Hon. Rajiv Joshi, J.) These two criminal appeals have been filed against the judgment and order dated 6.4.2004 passed by Additional Sessions Judge, Fast Track Court No. 5, Kanpur Nagar in Session Trial No. 1003 of 2003, whereby the appellants- Pappu and Sobran, have been convicted for the offence under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life thereunder, with fine of Rs. 5,000/-. In case of default in payment of fine, they were further ordered to undergo simple imprisonment for three months. Briefly stated, the prosecution case as contained in the written report (Ex. Ka-1) is that on 15.6.2003 at 5 P.M., appellant -Pappu had come to the house of informant- Munni Devi and asked Sanjay, son of the informant, to accompany him to a marriage ceremony. Sanjay after getting ready, went along with appellant Pappu. After sometime, the informant - mother, got information that his son- Sanjay has been stabbed by Pappu and Sobaran near T.B. Hospital, and Arvind, nephew of the informant, has seen both the appellants- Pappu and Sobran running away after committing the offence. Immediately thereafter, the informant rushed to the place of occurrence and took her injured son- Sanjay on a rickshaw initially to Sewadham Hospital, where the injured Sanjay was given first aid and therefrom he was referred to Regency Hospital. On reaching Regency Hospital, injured Sanjay succumbed to the injuries and dead body of Sanjay has been brought by the informant to her house. On the basis of the aforesaid written report, first information report of the incident (Ex.Ka-4) was registered at 7:05 P.M. the same day as Case Crime No. 93 of 2003, under section 302 IPC, at Police Station Rai Purva, Kanpur Nagar, against the accused-appellants. After GD entry on the same day, investigation of the case was taken over by Station House Officer - Radhey Shyam (P.W.5), who alongwith S.I. Shashi Kant (P.W.6), visited the house of the informant, directed S.I. Shashi Kant to conduct the Panchyatnama and send the dead body of Sanjay to mortuary for postmortem examination. The Panchayatnama was signed by the Panch witnesses. Thereafter, the dead body was handed over to the constable for carrying it to the mortuary. The Panchayatnama was signed by the Panch witnesses. Thereafter, the dead body was handed over to the constable for carrying it to the mortuary. Thereafter, the I.O (PW-5) on the same day visited the place of incident, prepared the site-plan, collected the blood stained soil and plain earth and recovered the weapon used in the offence i.e. Knife and prepared fard/recovery memo which are Ex. Ka-2 and Ka-3 duly signed by two witnesses namely Sonu and Arvind Kumar. Subsequently, the I.O set out to make the arrest of both the nominated accused Pappu and Sobaran. Postmortem on the dead body of Sanjay was conducted on 16.3.2003, at about 11:30 am by Dr. R.P. Mishra (PW-4), who found the following injuries on his: (i) Incised wound 3 cm x 1 cm abdomen cavity deep right side of abdomen or 6 cm above and Lateral side of Umbilicus. (ii) Incised wound 2 cm x 1 cm abdomen cavity deep front of lower abdomen 10 cm below Umbilicus. (iii) Incised wound 3 cm x 1.5 cm bone deep outer side of left thigh 17 cm below left iliac crust surgical bondage present over abdomen cavity & left thigh." On internal examination, both abdomen and peritoneum were found cut and in the opinion of the doctor, the death was as a result of shock and hemorrhage caused by the anti-mortem injuries. The postmortem report is Ex. Ka-6-A. The investigation officer after recording the statements of the witnesses under Section 161 Cr.P.C and after collecting the relevant material, concluded the investigation and submitted the charge-sheet (Ex. Ka-8) against both the accused appellants on 28.6.2003 before the court of Magistrate, who committed the case to the court of Sessions for trial. On 22.10.2003 charge was framed under section 302/34 IPC against the accused appellants, who pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution has examined as many as six witnesses. PW-1 Munni, is the informant and mother of the deceased, PW-2 Arvind Kumar, eye-witness of the incident, PW-3 Ram Singh, who prepared the chik F.I.R, PW-4 Dr. R.P. Mishra, who conducted the autopsy, PW-5 Radhey Shyam, the Investigation officer PW-6 SI Shashikant Singh, who conducted the inquest. PW-1 Munni, is the informant and mother of the deceased, PW-2 Arvind Kumar, eye-witness of the incident, PW-3 Ram Singh, who prepared the chik F.I.R, PW-4 Dr. R.P. Mishra, who conducted the autopsy, PW-5 Radhey Shyam, the Investigation officer PW-6 SI Shashikant Singh, who conducted the inquest. After conclusion of the prosecution evidence, statement of both the accused -appellants were recorded under Section 313 Cr.P.C on 16.3.2004 in which they have stated that they have falsely been implicated but did not adduce any evidence in defence. Informant PW1 - Smt. Munni, in her deposition in examination-in-chief, has stated that the deceased Sanjay was his son, who used to work privately at Sangeet Apartment; that on 15.6.2003 at about 4:00 pm, Sanjay returned after his duty, and after about 45 minutes, accused Pappu resident of T.B Hospital, Acharya Nagar came to her house and asked Sanjay to accompany him for attending an invitation, whereupon Sanjay after getting ready, went alongwith Pappu; after sometime, she received information that her son has been stabbed by Pappu and Sobaran; immediately thereafter she rushed to the place of incident at T.B. Hospital, where her nephew Arvind Kumar was boarding her injured son on a rickshaw and accused Pappu and Sobaran both had fled away. She has further stated in examination-in-chief that on her asking, Sanjay had told her that Sobaran had caught hold of him from back and Pappu had stabbed him. She next stated that at the time of incident, her nephew Arvind Kumar was coming from Kidwai Nagar, who has seen the incident. It is further stated by P.W.-1 that subsequently she alongwith her nephew, took injured Sanjay to Sewadham Hospital, where the deceased was given first aid and since there were serious injuries, therefore, he was referred to Regency Hospital, where the doctor after seeing her son, declared him dead and thereafter they brought body of the deceased at home where she got a report prepared which was written by one Deshraj Verma, and after putting her thumb impression thereon, she had given the same at the police station, which was exhibited as Ex. Ka-1. P.W.1 in her examination-in-chief, next stated that accused Pappu and Sobaran had eve-teased sister-in-law of her son Mukesh, thereupon she had rebuked Pappu and due to the said enmity, he has murdered her son. Ka-1. P.W.1 in her examination-in-chief, next stated that accused Pappu and Sobaran had eve-teased sister-in-law of her son Mukesh, thereupon she had rebuked Pappu and due to the said enmity, he has murdered her son. It is further stated that the investigation officer has recorded her statement after the incident on 15.6.2003, subsequent to lodging of the first information report. PW-1 Smt. Munni, was subjected to cross-examination in which she stated that when Sanjay returned home from duty, at that time, apart from her husband, two daughters namely, Manju, Pooja and her grand children were at home; that she has four sons and when Sanjay returned from duty, the accused- Pappu was at home and her second son Mukesh was watching T.V. that her son Mukesh used to reside at home and he too had gone for his duty but had returned back; that a baby was born out of wedlock of her son Mukesh sometime before the date of occurrence and hence sister-in-law (Sali) of Mukesh had come at her house after the baby was born; that Sanjay and Pappu were friends prior to date of incident and both of them used to visit each others' residence; that uncle of accused Pappu namely accused Sobaran also used to come to her home occasionally; that it is wrong to say that Sanjay used to quarrel with other persons and had ever gone behind the bars in any police station. She has next stated in her cross-examination that she had rebuked Pappu as he molested the sister-in-law of her son Mukesh. It has further been stated that when she reached near her injured son, then she saw that her nephew was boarding Sanjay in a rickshaw and Sanjay had told her that Sobaran caught hold of him from the back while Pappu had stabbed him. Subsequently, she took injured Sanjay in a rickshaw to the Sewadham Hospital. It has further been stated that when she reached near her injured son, then she saw that her nephew was boarding Sanjay in a rickshaw and Sanjay had told her that Sobaran caught hold of him from the back while Pappu had stabbed him. Subsequently, she took injured Sanjay in a rickshaw to the Sewadham Hospital. It has further been stated that her nephew Arvind is residing at Kidwai Nagar and he used to give tutions to the children; that Arvind came at her house 2-4 days prior to the date of incident and that he is unmarried; that after both accused Pappu and her son Sanjay, left the home, she got the information later about 10-15 minutes that Sanjay was stabbed by Pappu and Sobaran; that she used to work in veterinary hospital since 1972 and is residing there in the quarters; that there is no shops and houses outside the veterinary hospital, only road is there and there is a Thana at G.T. Road, which is about 30-40 fallangs away; that when she was carrying her injured son Sanjay, he was in a conscious state and was given first aid at Sewadham Hospital and that while injured Sanjay was in rickshaw, he had told her about the incident; that they stayed at Sewadham Hospital for about 5 minutes and thereafter had gone to Regency Hospital on another rickshaw and reached there at about 6 pm; that on reaching Regency Hospital, Doctor after seeing injured Sanjay, declared him dead and thereafter they came back alongwith the body of the deceased via Tempo at home; that there were bleeding from three places, one from the thigh, second from his Abdomen and third from his Stomach and when she reached home, the police had not reached there. She has further stated that she is residing in quarter of Veterinary Hospital and T.B. Hospital is towards south; that T.B. Hospital has two doors, one at northern side and another at southern side and the hospital is situated towards east; that T.B. Hospital is surrounded by boundary wall having height of around 8-10 feet; that towards southern side of the hospital, there is a lane coming from Acharya Nagar and this lane is towards east and west; that since the hospital is surrounded by big walls, therefore nobody could see what is happening inside the hospital. She next stated in her cross examination that when she lodged the F.I.R, it was within her knowledge that accused Sobaran caught hold of Sanjay from the back and Pappu stabbed him; that one Deshraj had written the report, subsequently, he read out the same to her and in case, anything is missing in the report, she could not say as to why the said fact has not been mentioned therein. PW-2 Arvind, who is eye-witness of the incident, in his examination-in-chief, stated that he is high-school passed and used to give tutions to small children; that on 15.6.2003 at about 5.15 pm, when he returned to his home, in between the lane of T.B. Hospital and the staff quarters and reached the north side of the hospital, then he saw that Sanjay was running and crying from the eastern side of T.B. Hospital and the accused Sobaran and Pappu were chasing him; that when he ran towards his brother, he saw that Pappu was armed with a knife, therefore, on account of fear that accused Pappu could attack him, he stopped and shouted from there; that accused Sobran had caught hold of Sanjay from backside and accused Pappu stabbed Sanjay thrice, one knife-blow was caused near the tree while two knife-blows in front of main gate of the T.B. Hospital, which is around 11 fallangs away; that after the incident both the accused fled away by jumping over the wall; that injured Sanjay after sustaining injuries fell down in the pool of blood; that thereafter, a rickshaw was called by him and he was trying to board injured Sanjay on the rickshaw and it was at that juncture that his aunt Munni Devi reached there; that both of them then boarded Sanjay on rickshaw when they started going to hospital, then on the query by Munni Devi, Sanjay told her that accused Sobaran had caught hold of him from backside and Pappu had stabbed him. Arvind -PW-2 in his examination-in-chief, further stated that he and Munni Devi thereafter on a rickshaw had taken injured Sanjay to Sewadham Hospital where Doctor gave first aid and put bandages on his injuries and advised them to immediately take Sanjay to Regency Hospital as the injuries were serious in nature; that thereafter they proceeded to Regency Hospital, where after examining Sanjay Doctor declared him dead and thereafter they came at home after loading the dead body of the deceased Sanjay on a Tempo. PW-2 has further stated that his family members had told him that accused Pappu had molested the sister-in-law of elder brother of Sanjay and his aunt had rebuked Pappu, therefore, on account of that reason, his brother was murdered by Pappu and Sobaran. It has further been stated by PW-2 that the I.O had taken samples of blood stained soil as well as plain earth from the spot and also recovered knife, in respect of which fards were prepared and he signed the same, which is exhibited as Ex. Ka-2 and Ka-3. PW-2 Arvind has been subjected to cross-examination in which he stated that his permanent residence is at Kidwai Nagar in G-Block Colony and also used to reside at his aunt's residence at G 87/316, Acharya Nagar, Kanpur; that his family including his mother and father resides at Kidwai Nagar and that on the date of incident, he was coming from Kidwai Nagar to his aunt's place. In the cross examination, PW-2 Arvind further stated that he entered in hospital from its south gate and was proceeding towards north gate of the hospital; that he saw the incident when north gate of the hospital was about 11-15 paces away; that he heard the noise and saw that the accused persons were chasing Sanjay after causing first knife -blow to him; that first knife blow was caused near the Pipal tree at a distance of about 15 paces from that tree towards southern side and thereafter the victim was chased and stabbed twice in front of main gate of the T.B. Hospital. It has been further stated by PW-2 that he shouted; that since the accused were having knife in their hands, therefore, he stopped; that thereafter he saw that Sobaran caught hold of the victim from the backside and Pappu stabbed him and after that they fled away by crossing over the boundary wall situated towards the backside. He further stated that all the three knife-blows were caused to Sanjay in his presence i.e. (i) below the chest, (ii) lower side of abdomen and (iii) thigh. PW-3 Ram Singh, is a police constable, who prepared the chik F.I.R and stated in his examination-in-chief that on 15.6.2003, the first informant Smt. Munni Devi came at the police station along with Deshraj, who had scribed the written report, thereafter the first information report was lodged and entries were made in the G.D. PW-4 Dr. R.P. Mishra, who conducted the postmortem examination, in his examination-in-chief, proved the postmortem report as well as the injuries, which is exhibited as Ka-6. PW-4 was subjected to cross-examination, in which he stated that all the injuries of the deceased were covered by surgical bandage and the injury no.1 and 2 were on the vital part though injury no.3 was on non-vital part of the body. The doctor further stated injury nos. 1 and 2 were fatal and it is very difficult to say about the mental state of the deceased but, in his opinion, the injured could talk for sometime after receiving such injuries; that there is a possibility of death within 5-10 minutes after receiving such injuries. PW-5 Radhey Shyam, who is the Investigating Officer of the case, stated in his examination-in-chief that on the date of incident i.e. 15.6.2003, he visited the house of the informant and place of incident after lodging of the first information report on the basis of written report submitted by informant Smt. Munni Devi, which was written by Deshraj Valmiki, and thereafter panchayatnama was drawn at her residence; that thereafter he collected the blood stained as well as plain earth from the place of incident and also recovered knife from the spot and prepared the fards in respect thereof. He further stated that he prepared the site-plan and recorded the statements of the witnesses under Section 161 Cr.P.C. PW-5 I.O. was also subjected to cross-examination, in which he reiterated his statement as recorded in examination-in-chief. He further stated that he prepared the site-plan and recorded the statements of the witnesses under Section 161 Cr.P.C. PW-5 I.O. was also subjected to cross-examination, in which he reiterated his statement as recorded in examination-in-chief. PW-6 SI Shashikant, who conducted the inquest, in his statement stated that he prepared the panchyatnama in presence of five witnesses and then send the body of the deceased for the postmortem through constables Ramsunder and Kailash Chand. PW-6 further stated in his examination-in-chief that at the time of making panchyatnama, there were three injuries on the body of the deceased, first near the navel, second at the Stomach and third injury was at his left thigh, which is about four finger below the waist and all the injuries were covered by the surgical bandage. PW-6 has been subjected to cross-examination in which he reiterated his statement, which was recorded in the examination-in-chief. The trial court, on the basis of aforesaid evidence adduced during the course of trial, came to the conclusion that accused appellant Pappu and Sobaran, have committed the murder of Sanjay and accordingly held them guilty for the offence punishable under Section 302/34 IPC and sentenced to them thereunder, as indicated above. Feeling aggrieved by the said judgment and order of the Trial Court, present two appeals have been preferred by the appellant Pappu and Sobaran separately, which were clubbed and were heard simultaneously. We have heard Sri Arvind Kumar Srivastava, learned Amicus Curiae for the appellant- Pappu, Sri V.P. Srivastava, Senior Advocate assisted by Sri Pankaj Srivastava, learned counsel for the appellant- Sobaran in connected Criminal Appeal No. 2693 of 2004 and learned AGA for the State. Learned counsel for the appellant has argued that the alleged incident took place at 5 pm on 15.6.2003, for which the first information report was lodged on the same day at 7:05 pm. The distance of police station from the place of occurrence is said to be half kilometer only and therefore, there is considerable delay in lodging of the F.I.R. Learned counsel for the appellant has further contended that both PW-1 and PW-2 are not the eye-witnesses of the incident and it is not known as to who informed the PW-1 about the incident. Learned counsel next contended that PW-2, first cousin of the deceased, resides at Kidwai Nagar is merely a chance and interested witness as the alleged incident took place at Acharyanagar, which is at considerable distance from Kidwai Nagar, where the PW-2 permanently resides. Learned counsel for the appellant further contended that there is contradiction between the versions as given in the first information report and the statements of PW-1 and PW-2, which itself falsifies the prosecution story. Learned counsel for the appellant further contended that according to the prosecution case, the motive behind the alleged incident as apparent from the statements of PW-1 and PW-2 is that Pappu had eve-teased the sister-in-law of elder brother of the deceased, for which the PW-1, the mother of the deceased, had reprimanded Pappu and on account of said motive, the deceased was attacked and murdered. According to the learned counsel, if the said motive is taken to be correct for the sake of argument, then there was no probability for the deceased to accompany Pappu after such an incident and therefore, the prosecution has not come with clean hands. Learned counsel for the appellant also referred to the site-plan, which is at page 99 of the paper-book (Ex. Ka-6) and argued that the alleged PW-2 was coming from other side which is shown in the site plan as point B and the incident took place initially at place C, where the deceased was stabbed and he started running towards point A, where the accused Sobaran along with Pappu stabbed the deceased, which incident was seen by the PW-2 from the place at point B. It has further been argued that it has come from the statement of witnesses that the boundary wall of the hospital is high and therefore it is not possible for a person present at point B to have witnessed any incident, which may take place. It has further argued that recovery of knife and blood stained soil has been made from point C and not at point B. Learned counsel for the appellant also drawn attention of this Court to the averment made in the first information report regarding Pappu saying deceased Sanjay to accompany him and after getting ready, the deceased went with Pappu, but as per the inquest report, which has been filed as Ex. Ka-9, the deceased is said to be wearing a printed shirt and pant while in the postmortem report, a copy of which has been exhibited as annexure Ka-6A, the body of the deceased was wearing Kurta and Payjama. It is further submitted that as per the first information report, the injured was initially taken to Sewadham Hospital where he was given first-aid and thereafter he was referred to Regency Hospital but there are no medical papers to show that the deceased was treated by any other hospital nor any Doctor of the other hospital has been examined by the prosecution. Learned counsel for the appellant has further drawn attention of this Court to the postmortem report and the injuries sustained by the deceased and has argued that after sustaining such injuries, no person could speak and hardly survive for five minutes and therefore, improvements have been made by P.W.1 & 2 in their statement even before the court regarding deceased telling the manner of incident to his mother, and hence the prosecution version is absolutely false and highly doubtful. Learned counsel for the appellant further submitted that first information report has been lodged at the behest of local politician, who had inimical terms with the family of the appellants and the appellants have falsely been implicated in connivance with the police and the present prosecution story has been set up due to ulterior motive. Learned counsel for the appellant also drawn attention of this Court to the statements of PW-1 and P.W.2, regarding deceased telling her mother about the incident, and submits that there are contradictions in their statements on the said point. Lastly, it is contended by learned counsel appearing on behalf of the appellant- Sobaran that the role assigned to Sobaran is quite different from that of Pappu and the sentenced awarded to him is too harsh. Per contra, learned AGA has submitted that it is a broad day light incident, which has been proved by the eye-witness, Arvind (PW-2), who has seen the incident and was living with the first informant in her house couple of days prior to the date of incident and he cannot be said to be a chance or interested witness. Per contra, learned AGA has submitted that it is a broad day light incident, which has been proved by the eye-witness, Arvind (PW-2), who has seen the incident and was living with the first informant in her house couple of days prior to the date of incident and he cannot be said to be a chance or interested witness. It is further contented by learned AGA that motive is also there that one of the accused person, Pappu had molested the sister-in-law of the elder brother of the deceased and therefore, in the facts and circumstances of the case, the order of conviction has rightly been passed after considering each and every aspect of the matter and there is no illegality or infirmity in the order warranting any interference by this Court. We have considered the rival submissions advanced by learned counsel for the parties and have carefully gone through the record. So far as the first submission that there is delay in lodging of the F.I.R. is concerned, it is evident from the first information report that the first informant's son Sanjay had been stabbed by the accused-appellants and soon after getting information about the incident, P.W.1- mother of the deceased rushed to the place of occurrence and from there took her injured son alongwith the eye-witness, PW-2 Arvind initially to the Sewadham Hospital, where deceased was given first aid and thereafter on medical advice, took the injured son from Sewadham Hospital to Regency Hospital, where he was declared dead. Thereafter, P.W.1 brought the body of the deceased to her home where report of the incident was got written by Deshraj, and then the first information report was lodged. Here, we may point out that paramount consideration for a mother whose son is critically injured struggling for life, is to first save the life of her son than to inform the police. The aforesaid attempts made by P.W.1 & 2 must have consumed sufficient time, and therefore, it cannot be said that there is any delay in lodging first information report. PW-1 Smt. Munni Devi is the informant while PW-2 Arvind is the eye-witness of the incident. In their testimony both of them clearly proved the incident. The aforesaid attempts made by P.W.1 & 2 must have consumed sufficient time, and therefore, it cannot be said that there is any delay in lodging first information report. PW-1 Smt. Munni Devi is the informant while PW-2 Arvind is the eye-witness of the incident. In their testimony both of them clearly proved the incident. PW-2 on the date and time of incident, while coming and passing through the lane between T.B. Hospital and staff quarters, has seen the entire incident from the north side of the hospital that after sustaining first knife below, Sanjay was running and shouting from the eastern side of the T.B. Hospital and accused persons namely Pappu and Sobaran were chasing the deceased and when P.W.2 ran towards his brother Sanjay but seeing that Pappu is armed with knife and could attack him also, he stopped. Testimony of P.W.2 further mentions that thereafter Sobaran caught hold of the victim from the backside and Pappu stabbed him twice and fled away by crossing over the boundary wall. This witness i.e. P.W.2 in his evidence has given each and every details minutely including the number of injuries caused and the places of assault and nothing has come out from his cross-examination made by the defence, to disbelieve his testimony. PW-1 cannot be said to be merely a chance or interested witness. He is the eye-witness of the whole incident. It is also well settled that people react altogether in different manners after watching gruesome incidents. Some persons become speechless, some started wailing, some faint, some intervenes and some muster courage to challenge the accused persons. Similarly, different persons describe a particular incident in different ways. Keeping in view the different behaviors by different persons, we find that the evidence of both the witnesses PW-1 and PW-2 is reliable and trustworthy. Even if, there is minor omission at one or two places, their testimony cannot be discarded only on the ground that they happen to be the mother and cousin of the deceased. As regards the motive, it has come on record that one of the accused namely Pappu had eve-teased the sister-in-law of elder brother of the deceased, for which PW 1- mother of the deceased, had reprimanded Pappu, as a result of which, deceased Sanjay was murdered. As regards the motive, it has come on record that one of the accused namely Pappu had eve-teased the sister-in-law of elder brother of the deceased, for which PW 1- mother of the deceased, had reprimanded Pappu, as a result of which, deceased Sanjay was murdered. The contention of learned counsel for the appellant that if the said motive, is taken to be correct, in that event the deceased could not go with Pappu and the prosecution appears not to come with clean hands, is concerned, we have considered the said submission and are of the opinion that the said argument does not help the appellants in any way. It is well settled that motive part is not material in the cases where eye witness account and direct evidence of the incident corroborated by the medical evidence is available. Motive becomes material and relevant when the entire prosecution case is based upon circumstantial evidence. As indicated above, it has clearly come in the statement of prosecution witnesses that Pappu had stabbed and Sobaran had caught hold of the deceased from his back. The site-plan clearly indicates that the accused persons had firstly stabbed the deceased at spot 'C',, thereafter he ran and the accused appellants after chasing caught hold of the deceased and stabbed twice at point 'A'.. The PW-2 had seen the offence being committed by the accused persons from spot 'B', which can easily be seen by a person standing at spot 'B' as there is no boundary wall of the hospital in between. From the point 'C' to point 'A', there were blood stained soil and knife was also recovered as is apparent from the recovery memo. The injuries sustained by the deceased as apparent from the postmortem report clearly substantiate the prosecution version, which stands established beyond reasonable doubt. Now, coming to the contention that in the inquest report (Ex. Ka-9), it is mentioned that the deceased is shown to wear printed shirt and pant while in postmortem report, the body of the deceased is covered by kurta and payjama, this argument advanced on behalf of the appellants, does not appeal to us, for the simple reason that it is a case of direct evidence, which has been proved by the prosecution beyond any reasonable doubt. Further, there can be a lapse in this regard either on the part of I.O. or the doctor and the appellants cannot be permitted to derive any benefit therefrom particularly when prosecution case is otherwise fully proved by the eye witness account corroborated by the medical evidence on record. In so far as the submission advanced by Learned counsel for the appellant that there is no medical paper with regard to the treatment of of the deceased either of Sewadham hospital or Regency hospital nor any doctor of the said hospitals has been examined by the prosecution, is concerned, the said argument is also of no avail and help in any manner to the appellants, in view of the fact that it is apparent from the testimony of PW-1 and PW-2 that the deceased was initially taken to Sewadham Hospital where the deceased was given first aid and therefrom, the deceased was referred to Regency Hospital where on examination by doctor, Sanjay was declared dead, which implies that no medical treatment was given to the deceased at Regency hospital. The fact that first medical aid was provided to the deceased at Sewadham Hospital and no treatment was given at Regency hospital as stated by the witnesses, is also apparent from the postmortem report wherein it is clearly mentioned that the deceased Sanjay received three injuries and all the injuries were found covered by surgical bandage. In the facts narrated above, there appears to be no necessity for the prosecution to examine any doctor or to file any paper regarding his treatment of Sewadham Hospital. The next contention of learned counsel for the appellant that considering the nature of injuries which the deceased had sustained, no person could speak and hardly survive by five minutes and therefore, improvement has been made by the witnesses in their statements regarding the deceased's telling about the incident to his mother is concerned, we may refer in this regard the testimony of PW-4, Doctor, who conducted the postmortem examination and proved the postmortem report. P.W.4-Doctor has clearly stated in his cross-examination that the injury nos. 1 and 2 were on vital part while injury no.3 was on non-vital part. He further stated in his cross-examination that it is very difficult to say about mental state of the deceased after receiving such injuries and further said that he could talk for sometimes after sustaining such injuries. 1 and 2 were on vital part while injury no.3 was on non-vital part. He further stated in his cross-examination that it is very difficult to say about mental state of the deceased after receiving such injuries and further said that he could talk for sometimes after sustaining such injuries. He also stated that there is a possibility of death within 5 or 10 minutes after receiving such injuries. When medical expert is of the opinion that deceased could talk for sometime and there is evidence by P.W.1 and P.W.2 to the effect that on query by the mother-P.W.1, the deceased told her that accused persons stabbed him, there is no reason to disbelieve the evidence of P.W.1 & 2 on this point. Now coming to the submission that first information report has been lodged at the behest of local politician, who had inimical terms with the family of the appellant and therefore, the appellants have been falsely implicated, suffice it to say that nothing in this regard has been brought on record by the accused appellants nor anything has come out from the cross-examination of the prosecution witnesses, suggesting that accused persons have been falsely implicated at the instance of local politician having inimical terms with them. Consequently, this argument also has no legs to stand. As regards the submission that as to who informed the PW-1 about the incident, has not come in the evidence of P.W.1, in our view, one can easily understand the mental state of a mother, who is an illiterate person and whose son has been murdered. In her cross examination, P.W.1 on this issue has stated that she does not recollect the name of the person/persons of Mohalla who informed her about the incident. An illiterate lady is not expected to remember the name/names of the person/persons informing her about the incident. But from her statement, this much is certain that she was in fact informed by a resident of her Mohalla. Further, absence of the name of informer by her, does not in any way affect the factum of the incident. The last contention of learned counsel for the appellant is that the role assigned to the appellant- Sobaran is of catching hold only, and is quite different from that of accused Pappu. Further, absence of the name of informer by her, does not in any way affect the factum of the incident. The last contention of learned counsel for the appellant is that the role assigned to the appellant- Sobaran is of catching hold only, and is quite different from that of accused Pappu. From the entire prosecution version, it is clearly established that Sobaran caught hold of deceased Sanjay and then Pappu had stabbed him and the said act has been committed by both the accused appellants in furtherance of their common intention, and therefore, in terms of section 34 IPC, each of them is liable for the the said act in the same manner as if it was done by Pappu alone. In our view, appellant Sobran is not entitled for any leniency and the argument so raised in this regard, is not acceptable. In view of the aforesaid discussion, in the opinion of this Court, the findings recorded by the trial court are based on critical analysis of evidence, which cannot be said to be perverse or illegal and the conclusion arrived at by it that the prosecution has succeeded to establish its case beyond reasonable doubt, does not suffer from any illegality or infirmity. The impugned judgment and order dated 6.4.2004 recording conviction against the appellants, is upheld and the sentence awarded to both the accused is confirmed. In the result, both these appeals fail and are accordingly dismissed. The appellant Sobaran is on bail. His bail is cancelled. The C.J.M/Session Judge Kanpur Nagar shall cause the appellant Sobaran to be arrested and lodged in jail to serve out the sentence. Let a copy of this judgment alongwith the trial court record be sent to Sessions Judge/C.J.M, Kanpur Nagar for necessary compliance. Judgment be certified and placed on record.