The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be redirected by the Sessions Court.
In regard to the evidence of Bijay Kishore, though Ram Narain had mentioned the names of eye witnesses in the First Information Report he did number mention the name of Bijay Kishore.
This appeal by special leave is directed against the judgment of the High Court ordering the retrial.
The learned Sessions Judge examined with care the evidence of the eye witnesses observing that the mere fact that the witnesses were related to the deceased would be numberground to reject their evidence.
When Nanhey Lal tried to disarm Satyendra Nath Dutta, Subhash is alleged to have caught hold of Nanhey Lal facilitating a knife attack by Satyendra Nath on Nanhey Lal.
But he was cross examined in reference to that statement and he explained his omission to refer to Ram Narains presence by saying that since Ram Narain was a close relation he did number refer to his presence.
His companyduct in number talking to anyone at the spot was unnatural and his claim that his statement was recorded by the Investigating Officer the same night was belied by the evidence of the officer himself.
It is said that the State of U.P. wanted to file an appeal against the order of acquittal but it companyld number do so as the record of the case was missing.
Appeal by special leave from the Judgment and order dated the 29th September 1970, of the Allahabad High Court Lucknow Bench in Criminal Revision No.
The Sessions Court rejected this explanation because Raj Kishore had mentioned the name of Sheetal Prasad as eye witness though he was related to him.
He also referred to what clearly was an important, circumstance that the First Information Report, which was lodged without delay, mentioned the names of Ram Narain and Bijay Kishore as eye witnesses.
The evidence of the other witnesses was also rejected by the Sessions Court.
The prosecution also relied on the circumstance that a cycle taken on hire by Subhash was found at the scene of occurrence.
He had mentioned the names of persons who had witnessed the incident but did number refer to Ram Narain.
Raj Kishore who was also injured during the incident had made a dying declaration at the Balrampur Hospital, Lucknow, at about 2 30 p.m. on September 5.
Ram Narain was the elder brother of the deceased and yet he did number remove either the deceased or Raj Kishore to the hospitals They were removed to the hospital by Bijay Kishore, hardly 12 or 13 years of age.
364 of 1966.
On hearing the shouts of Raj Kishore, Nanhey Lal went to the Pan shop.
At about 5 a.m. the next morning Nanhey Lal succumbed to, his injuries.
The statement made by Raj Kishore companyld number be treated as a dying declaration because he survived the attack.
The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under section 439, Code of Criminal Procedure, challenging the order of acquittal.
Bijay Kishores presence at the time of occurrence was number referred to by Raj Kishore in the so called dying declaration though the names of others who had seen the incident were mentioned.
When Raj Kishore went to bring the Pan, the appellant Subhash is alleged to have given a blow with a cane to him.
In the meantime, the appellant Satyendra Nath Dutta snatched the cane from Subhashs hand.
Debabrata Mukherjee Manoj Swaroop and U. S. Prasad, for the appellants.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The prosecution examined five eye witnesses, Ram Narain, Barati Lal, Bijay Kishore, Kallu and Raj Kishore.
55 of 1971.
His explanation that he forgot to mention Bijay Kishores name in the F.I.R. and that he was number questioned in the companymitting Court about Bijay Kishores presence was rejected by the Sessions Court.
Raj Kishore intervened to save his father but Subhash is alleged to have given him two knife blows.
Satyendra Nath Dutta was charged under section 302 and section 307 read with section 34 while the other appellant was charged under section 307 and section 302 read with section 34 of the Penal Code.
ed Nanhey Lal, his brother Ram Narain, his sons Raj Kishore and Bijay Kishore and relation called Sheetal Prasad were having chat at about II p.m. Ram Narain sent Raj Kishore to fetch a Pan from Hari Sharmas shop.
But the learned Judge found the evidence of these and other eye wit nesses unacceptable for a variety of reasons.
Shivpujan Singh, for respondent.
The Judgment of the Court was delivered by CHANDRACHUD J. The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in companynection with the death of one Nanhey Lal and injuries to his son, Raj Kishore.
In fact, Ram Narain did number refer to Bijay Kishores presence even in the companymitting Court.
