Hon'ble Judges/Coram:
Baharul Islam, D.A. Desai and V. Balakrishna Eradi

JUDGMENT

1. These four Criminal Appeals are by special leave. Criminal Appeal No. 175 of 1974 is by the four appellants-Maqsoodan, Madan Mohan, Prayagnath and Nando who have been convicted under Sections 302/34 and 307/34 Penal Code.

2. The material facts may be briefly stated as follows:

On 8 6.1972 at about 5.45 or 6.00 a.m., when Sulley (P.W. 1) along with his brother, Jadon (deceased), his son, Rajendra (C.W. 1) and his nephew Vijay Kumar (P.W. 3) were going from their house in Neem Gali, Mathura, to their Dharamshala in Mohalla Bengali Ghat, via Vishram Ghat and reached the area called Shyam Ghat, they were waylaid by the twelve persons accused in the case and were assaulted. According to the prosecution, the accused persons were variously armed with Ballams, pharsas and lathis. Another group of twelve or thirteen persons who were associates of the accused was standing at Vishram Ghat and some one was constantly inciting the accused persons with the expression, "kill, kill" where upon the accused persons attacked and assaulted Jadon, Vijay Kumar, Rajendra and Sulley. Jadon and P.W. 3 were severely injured. The condition of Jadon was very precarious. After the assault, the miscreants left. P.W. 1 arranged for a lorry belonging to one Vishnu Chaubey and carried the injured persons to the District Hospital. The driver of the lorry was one Than Singh Jadon and P.W. 3 were removed to the operation theatre. Thereafter, P.W. 1 proceeded to the Police Station, Kotwali at Mathura and submitted a written First Information Report (FIR) about the incident. The FIR was written by his nephew, Prakash Chandra Chaturvedi (P.W. 8). The FIR was lodged at 6.30 a.m. at the Police Station and has been proved in this case as Ex. "Ka-16". After lodging the FIR, P.W. 1 came back to the hospital where the injuries of all the four injured persons were examined by Dr. B.S. Babbar. As the condition of the injured persons was serious, intimation was sent to Shri U.C. Tripathi (D.W. 7), Sub-Divisional Magistrate, Sahabad, for recording their statements. The Magistrate came and recorded the statements of P.W. 3 and C.W. 1 at 9.15 a.m. and 9.20 a.m. respectively. Jadon was operated upon and his condition was such that he could not make any statement. In fact, he succumbed to the injuries the next day, namely, 9.6.1972 at 3.25 p.m. The post-mortem examination was conducted on the dead body of Jadon by Dr. B.S. Babbar on 10.6.1972 at 10.00 a.m.

3. The police after investigation submitted charge-sheet against the twelve accused persons, all of whom pleaded not guilty. The First Additional Sessions Judge, Mathura, who tried the case, convicted eleven out of the twelve accused persons and acquitted accused No. 12, Kanhaiya. Appellant Maqsoodan was convicted under Section 302 I.P.C. and sentenced to death. The other ten accused persons were convicted under Sections 302/149 and 307/149 I.P.C. and sentenced to imprisonment for life, each under Section 302/