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3. Both appeals have been consolidated and heard together and both appeals are being disposed of by this common judgment. The original judgment shall be kept on record of Government Appeal No. 1601 of 1980.

4. Heard learned counsel for the parties and perused the record.

5. The prosecution story was that deceased Kunwar Pal Singh and the witnesses Yash Pal Singh and Ved Bir Singh were living together in a room in Mohalla Nagla Battu in the city of Meerut, that on the day of occurrence in the noon there was some quarrel between the deceased and two boys, namely, Sukhbir and Tejbir, that the accused Avinash was also accompanying Sukhbir and Tejbir in that incident, that the present occurrence took place on 1-12-1978, that on that day the deceased and his companions Yash Pal Singh and Ved Bir went together to see the picture in Evej Talkies, Meerut in the show running from 6 to 9 p.m. taking their seats in the second class, after purchasing tickets, that on the seat behind the seat of Kunwar Pal deceased this accused was sitting, that during the show the accused knocked the deceased many times with his leg, that the deceased informed his companions that the boy sitting behind him was one of the persons who was with Sukhbir and Tejbir in Meerut College at the time of a quarrel there, that after the show was over the deceased and his companions came out of the cinema hall and the accused met them on the gate and had a talk with the deceased, that during the conversation the deceased and the accused went to the other side of the road, that one Sudesh met the witnesses Yash Pal Singh and Vedbir and they followed the deceased and, the accused, that there was electric light of electric rod on the road, that after some time, all of a sudden, the accused took out a knife and gave a knife blow on the deceased's chest and fled towards the excise godowns, that the deceased made a cry and ran after the accused but after some distance the deceased fell on the ground, that the accused managed to escape, that the companions Yash Pal Singh and Vedbir took the deceased to P. L. Sharma Hospital, Meerut in a rickshaw where he was hospitalised and where he died at about 10 p.m., that leaving the dead body of the deceased in the hospital Shri Ved Bir Singh companion went to police station Kotwali where he lodged the written F.I.R.(Ext.ka-5)on 1-12-78 at 11.15 p.m. and on its basis the chick report was prepared. Accused Avinash was not nominated in the F.I.R. During investigation his name was disclosed by Chatar Singh (PW 3) who gave an eye-witness account to the Investigating Officer Sri V.S. Vishnoi (PW 10), on 2-12-1978. The Investigating Officer could not arrest accused Avinash and claimed to have given a report under Section 82/83, Cr.P.C. It was claimed that he did not get the warrant till 9-2-79 and that thereafter the Investigation of the case was entrusted to C.I.D. C.B., Meerut. The second Investigating Officer Sri Badan Singh (PW 5) C.B. C.I.D. Meerut also made a search of the accused but could not find him, and could not arrest him. Ultimately the accused Avinash surrendered in Court on 14-5-1979. He was put up for identification on 15-6-1979. Sri Sita Ram, Executive Magistrate (PW 4) got the identification proceedings conducted and Yash Pal Singh (PW 1) and Vedbir Singh (PW 2) correctly identified the accused Avinash in the identification proceedings. The identification memo is Ex. ka 2. At the trial both these witnesses correctly identified the accused and Chatar Singh (PW 3) gave occular evidence against the accused naming him. The learned Sessions Judge accepted the prosecution evidence with the only difference that he considered that the evidence constituted only an offence under Section 304, I.P.C. against the accused and observed that though the blow with a knife may not be caused with an intention to commit the murder of Kunwar Pal Singh deceased, but at least this accused had full knowledge that he is causing such a bodily injury which was likely to cause the death of Kunwar Pal and that ultimately Kunwar Pal died of this injury.

6. We have heard learned counsel for the parties and perused the record. It is not controversy that deceased Kunwar Pal was inflicted a sharp weapon injury on his body on 1 -12-78 in the night, due to which he later on died in P. L. Sharma Hospital, Meerut the same day. The injury was a punctured wound 2 cm. x 1 cm. chest cavity deep on the left side of front of chest. Pericardium and the heart were punctured. The injury was sufficient to cause death in the ordinary course of nature.

7. The F.I.R. of this case has been lodged at 11.15 p.m. at police station Kotwali, district Meerut by Vedbir Singh (PW 2). Witness Yash Pal Singh has been named in the F.I.R. In the F.I.R. it is claimed that informant Vedbir Singh and Yash Pal Singh both who accompanied the deceased in the Cinema Hall itself and Sudesh, who met them in front of the Cinema Hall after the show was over and before the occurrence took place took the deceased to the Hospital in rickshaw. In the F.I.R. it is also stated that the occurrence took place at 9.15 p.m. and that the deceased died in the Hospital the same day at 10 p.m.

18. It is significant to note that it has been claimed in the F.I.R. and also in the evidence of the prosecution witnesses at the trial that after coming out from the cinema show the assailant joined the deceased and while both of them were conversing with each other they both, i.e. the deceased sod the assailant, crossed the road and went to other side of the road in front of the cinema hall. In the F.I.R. it was stated that Sudesh met the informant Vedbir Singh and witness Yash Pal Singh and then these three proceeded behind i.e. towards the deceased. According to the prosecution witnesses the assailant had teased the deceased from behind in the picture hall by kicking to which the deceased had objected. According to informant Vedbir Singh (PW 2) kicking was made several times by the assailant. If that was a correct statement of fact then there would be no occasion for the deceased joining the assailant at the gate of the cinema hall and going with him to the other side of the road leaving the informant and Yash Pal Singh witness behind. So obviously, all these were concocted facts. The incident of teasing inside the picture hall appears to have been introduced in the F.I.R. and the prosecution evidence given by Vedbir Singh informant (PW 2) and Yash Pal Singh (PW 1) to show adequate opportunity for both of them to see and identify the assailant. The conversation between the deceased and the two witnesses disclosed in the F.I.R. that he had seen the assailant in the noon in the company of Sudhir and Tejvir with whom an altercation had taken place in the College was also intended to serve the same purpose. However, this makes it even more improbable that after the show was over the deceased will join the assailant in the manner as claimed by the prosecution.

22. In the F.I.R. it has been stated that informant Vedvir Singh (PW 2) and Yash Pal Singh (PW 1) were sitting in the cinema hall having ticket of Rs. 3.25 each. It has been stated by Yash Pal Singh (PW 1) in his cross-examination that he had taken tickets of Rs. 3.25 each. He denied having told the first. I.O. Virendra Pal Singh (PW 10) that tickets of Rs. 3.75 each were taken. He could not give any explanation why it was so recorded. This I.O. said that Yash Pal Singh (PW 1) had told him that the cinema ticket was of Rs. 3.75 (each). Informant Vedvir Singh (PW 2) stated in para 7 of his evidence at the trial that he had taken ticket of Rs. 3.25 each and had told this to the first I.O. However, he could not give any explanation that in his statement recorded by the said I.O. it was written that he gave the fare of tickets as Rs. 3.75 each. The said I.O. contradicted him on this point in para 11 of his evidence. This discrepancy assumes significance in view of the earlier noted circumstances. It becomes one more circumstance to show that none of them had gone to see the show on the said date and had given the amount of ticket charge on the basis of conjecture.