According to prosecution version, accused-appellant Zahid Khan as well as deceased Khalid used to ply their respective rickshaws.Three-four days prior to the incident, rickshaw of deceased Khalid has got struck with rickshaw of accused-appellant Zahid Khan and due to that reason, accused-appellant Zahid Khan has threatened him.On that day at about 7:00 pm accused-appellant has sent one boy to call the deceased from his house and accused-appellant Zahid Khan took position in nearby lane (Gali) by concealing himself.When deceased Khalid, while taking his rickshaw, reached near water tank in the lane, accused-appellant Zahid Khan attacked him with knife.Deceased Zahid Khan sustained knife injury at his abdomen.Hearing his noise, one Bhoora Khan and Zafar Khan as well as some other nearby residents rushed to spot but Zahid Khan fled away from there.Injured Khalid was medically examined by PW-6 Dr. S.K. Gupta vide MLC Ex. Ka- 3 and he has sustained following injuries:(i) Incised wound 3 cm x 1.5 cm x abdominal cavity deep.Loops of intestines were protruding out.19. PW-5 Zafar Miyan has stated that accused-appellant is known to him.On day of incident at around 6:45 / 7.00 PM while he was passing through Jail road and he reached near house of Azam Khan, after hearing noise, he reached in the lane and saw that accused-appellant Zahid Khan was causing injuries to Khalid.At that time Bhoora Khan, Bachhan Khan and Sher Ahmad have also reached there.This appeal has been preferred against judgment and order dated 16.9.1982, passed by learned Sessions Judge, Rampur, in Session Trial No. 33 of 1982, State vs. Zahid, under Section 302 IPC, P.S. Ganj, District Rampur, whereby, accused-appellant Zahid was convicted under Section 304 Part-I IPC and sentenced to four years rigorous imprisonment with fine of Rs. 100/. In default of payment of fine he has to undergo three months rigorous imprisonment.Kept under observation.Advised X-Ray.It was on left side of abdomen 6 cm below umblicus.(ii) Incised wound 4.5 cm x ½ cm x muscle deep on inner surface of right hand.It was a simple injury.Deceased Khalid, being in injured condition, was admitted in hospital but during course of treatment on 21.09.1981 he succumbed to injuries.Inquest proceedings were conducted by Investigating Officer P.W.-9 S.I. Ompal Singh vide inquest report Ex. Ka-10 and dead body of the deceased was sent for postmortem.Deceased has sustained following injuries.(i) stitched wound 3.2 cm left iliac region of abdomen 10 cm below and laterally to umblicus 2 cm above the ingunial legament left side that is in the lowest part of the abdomen.(ii) stitched wound 4.5 cm right palm posteriorly between thumb and index finger (roots) extending upwards to dorsum of palm.Cause of death of the deceased was on account of injury no.1 causing hemorrhage and shock.Investigation of the case was conducted by PW-9 S.I. Ompal Singh.After completion of investigation, accused-appellant Zahid Khan was charge-sheeted for offence under Section 304 IPC.Trial court framed charge under Section 302 IPC against accused-appellant Zahid Khan, who pleaded not guilty and claimed trial.In order to bring home the guilt of accused-appellant Zahid Khan, prosecution has examined nine witnesses.After prosecution evidence, accused-appellant was examined under Section 313 of Cr.P.C., wherein, he has denied prosecution evidence and claimed false implication.However, no evidence was adduced in defence.After hearing and analyzing the evidence on record, trial Court convicted accused-appellant Zahid Khan under Section 304 Part-I of IPC and sentenced as stated in opening part of this judgment.Being aggrieved of his conviction and sentence, accused-appellant Zahid Khan has preferred the present appeal.Heard Sri Moeez Uddin, learned Amicus Curiae for the appellant and Sri Attreya Dutt, learned A.G.A. for the State.Learned Amicus Curiae has argued:I. that both the eye-witness PW-3 Bhoora Khan and PW-5 Zafar Miyan are inimical witnesses and their presence at the spot is highly doubtful and that there are contradictions in their testimony.It was stated that statements of these witnesses are not reliable.that prosecution has failed to prove any motive on the part of accused-appellant to cause death of deceased Khalid.The prosecution version that a few days prior to the incident, rickshaw of deceased has got struck with rickshaw of accused-appellant, is not established.It was stated that accused-appellant has taken a specific plea that as he used not to run any rickshaw.that alleged statements of deceased, recorded by PW-1 Salim Khan, which has been treated as dying declaration, is not reliable and there is no evidence that deceased was in a fit state of mind to make such an statement.As per prosecution version, deceased has sustained serious injuries at his abdomen area and thus, it does not appear reliable that he was in such mental state to make any such statement.Per contra, it has been submitted by the learned State Counsel that first information report of this case was lodged by deceased himself within half an hour of the incident naming the accused-appellant Zahid Khan.Both the eye-witnesses PW-3 Bhoora Khan and PW-5 Zafar Miyan have made clear and consistent statement.No material contradiction or inconsistency could emerge in their cross-examination.Their version is amply supported by medical evidence.There are no reasons to disbelieve the alleged dying declarations.Learned State counsel submitted that there is overwhelming evidence against accused-appellant, which has been duly appreciated by trial Court and that conviction of accused-appellant is based on evidence.I have considered the rival submissions and perused the record.In evidence PW-1 Salim Khan has stated that on 17.09.1981 Khalid has got written tahreer Ex. Ka-1 from him and whatever was dictated by Khalid, the same was written down in the same.The tahreer was read over to him and after that Khalid has affixed his thumb impression on the same.PW-1 Salim has stated that Khalid has got written the following tahreer from him:udy rgjhj fgUnh **Fkkuk bZUpktZ xat jkeiqj fuosnu gS fd rhu pkj fnu igys esjk fjd'kk tkghn eksgYyk tsy jksM dh fjd'kk ls Vdjk x;k Fkk rks blus eq>s dgk Fkk fd rw>s ns[akwxkA vkt djhc 7 cts 'kke tkghn us eq>s cqykus ,d yM+dk Hkstk vkSj vius vki Nqi dj xyh eas [kM+k gks x;k tc eS viuk fjd'kk ysdj Vadh ds ikl vk;k rks blus Nqjh ls esjs Åij okj dj fn;k Nqjh esjs isV esa o nk;s gkFk esa yxh esjs 'kksj ls eksgYys ds Hkwjk [kka o tQj vk;s vkSj cgqr ls vkneh vk;s ftUgsa vkrk ns[kdj tkghn Hkkx x;k esjh jiV fy[k dj dkjokgh dh tk;s eq>s vLirky Hkst fn;k tk;sA** izkFkh [kkyhn iq= cUus [kak eksgYyk enjlk dksuk Fkkuk xat jkeiqjA rgjhj ys[kd& lyhe [kka iq= utkdy vyh [kka eksgYyk BksVj Fkkuk xat jkeiqj g- vaxzsth lyhe [kka 17-9-81PW-2 Dr. P.L. Shah has conducted postmortem.PW-3 Bhoora Khan has stated that he knows the accused-appellant Zahid Khan.On the day of incident, at around 7:00 pm when he was going towards his field and reached at some distance from the house of Azam Khan MLA, near turn of road, he heard noise and when he reached there, he saw that in the lane accused Zahid Khan was giving knife blow at stomach of Khalid.PW-3 Bhoora Khan raised alarm and thereafter accused-appellant ran away towards north side.PW-3 Bhoora Khan further stated that one Bachhan Khan, Zafar Khan and some other persons have also reached there.Deceased Khalid, while he was in injured condition, has dictated a report to Salim Khan.They all raised alarm and thereafter accused-appellant fled away.Deceased Khalid sustained injuries at his stomach and hand.20. PW-4 constable Omkar Singh and PW-7 constable Devendu Singh have assisted during investigation.21. PW-6 Dr. S.K. Gupta has medically examined the deceased Khalid Khan, while deceased was in injured condition.PW-8 Rashid is brother of deceased and he has stated that after incident, deceased was admitted in hospital and on 21.09.1981 he was to be taken to Delhi institute but as soon as he was taken out from the hospital, he succumbed to injuries and thus, deceased was again taken back to the same hospital.PW-9 S.I. Ompal Singh has conducted investigation.He has stated that on 17.09.1981 after registration of case he has recorded statement of Khalid at the police station.PW 9 Ompal Singh has spoken the contents of exhibit Ka-6 as under:"rkbZn o rLnhd jiV nkf[ky djrs gq;s C;ku fn;k] fd eaS fjd'kk pykrk gwWA rhu pkj fnu igys esjk fjd'kk tkfgn dh fjd'kk ls Vdjk x;k Fkk tks fd tsy jksM ij jgrk gS rks tkfgn us eq>ls dgk Fkk fd rq>s ns[kwXkkA vkt djhc] 7 cts tkfgn us eq>s ,d yM+ds ls cqyok;k tcfd eS viuh fjd'kk ysdj tsy jksM dks tk jgk Fkk ml yM+dk dk uke irk eS ugh tkurk gwW vkSj tkfgn [kk xyh esa Nqidj [kM+k gks x;kA tc eS viuh fjd'kk ysdj eksgYyk ?ksj ehjckt [kk dh Vadh ds ikl igqWpk rks tkfgn [kk us esjs Åij Nqjh ls okj dj fn;kA Nqjh esjs isV o nkfgus ckg esa vaxwBs o vaxqyh ds ikl yxhA esjs 'kksj ij eksgYYkk Hkwjk [kka o tkQj vk x;k ckn dks vkSj Hkh cgqr ls vkneh vk; x;s FksA ftUgsa ns[kdj tkfgn Nqjh fy;s gq;s Hkkx x;kA eSusa ogh ij lyhe [kka cki dk uke utkdr vyh [kka ls bl ckr dh] [kqn cksydj ,d rsgjhj fy[kokbZ tks eSus cksyk mlus ogh fy[kk eq>s i<+dj lqukdj esjk fu'kkuh vaxwBk yxok;kA rsgjhj ysdj Fkkus vk;k vkSj nhokuth dks rsgjhj nsdj jiV fy[kkbZA nhokuth us jiV fy[kdj udy eq>s nh gSA vkSj pksVsa ns[kdj fy[kh gS vc eS vLirky tk jgk gwWA**"PW 9 further stated that during course of investigation, statements of other witnesses were recorded.On 21.09.1981 after receipt of information regarding death of Khalid, case was converted from Section 324 to Section 304 IPC.Perusal of record shows that conviction of accused-appellant Zahid Khan is based on dying declaration of deceased Khalid as well as testimony of eye-witness PW-3 Bhoora Khan.So far the dying declarations of deceased Khalid are concerned, the case of prosecution is that in alleged incident deceased Khalid has sustained knife injuries at his abdomen area.For reporting the matter to police, he dictated a tahreer exhibit ka-1 to PW 1 Salim Khan and submitted the same to police and case was registered on the basis of that tahreer.On fourth day deceased succumbed to injuries and thus, after death of deceased, the said document (exhibit ka-1) amounts to dying declaration made by deceased before PW 1 Salim Khan.Secondly after registration of case at the police station, statement (exhibit ka-6) of deceased was recorded under section 161 CrPC by PW 9 SI Ompal Singh at the police station itself and thereafter he was sent to hospital.As stated earlier, on 21.09.1981 deceased succumbed to injuries, thus according to prosecution said statement exhibit ka-6 made by deceased to PW-9 SI Ompal Singh would also fall within the ambit of 'dying declaration'.Here it may be stated that both PW-1 Salim Khan and PW-9 SI Ompal Singh have made clear and consistent statements regarding alleged statements exhibit ka- 1 and exhibit ka-6 respectively.PW-1 Salim has made a consistent and cogent statement that on 17.09.1981 Khalid has got written tahreer exhibit Ka-1 from him and whatever was dictated by Khalid, the same was taken down in the tahreer exhibit ka-1 and that it was read over to him and after that Khalid had affixed his thumb impression on the same.PW-1 Salim has also spoken about contents of exhibit ka-1 in his statement.The investigating officer (PW 9) was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid.Before sending him to the hospital for proper treatment, PW-9 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-6 came to be recorded.No such evidence was brought on record to support the said allegation.Date: 06.08.2020 A. Tripathi (Raj Beer Singh, J)

Cited provisions: Section 304 in The Indian Penal Code; Section 324 in The Indian Penal Code; Section 302 in The Indian Penal Code