Case: State (Delhi Administration) Vs. Vishwa Bandhu Alias Billa and Another

KAILASAM, J. 1. On May 4, 1978 we pronounced orders in Court allowing the appeal by the State (Delhi Administration) setting aside the acquittal of both the respondents and convicting both the accused under Section 326, I.P.C. and sentencing them to six years rigorous imprisonment each. We proceed to give our reasons. 2. The respondents Ram Kishan alias Phokan and Vishwa Bandhu alias Billa were tried by the Additional Sessions Judge, Delhi, on a charge under Section 302, read with Section 34, I.P.C. The learned Judge found both the accused guilty for an offence under Section 302, read with Section 34 I.P.C. and sentenced them to imprisonment for life. The two respondents preferred separate appeals - Vishwa Bandhu preferred Cr. A. 132 of 1972 and Ram Kishan Cr. A. 178 of 1972 to High Court of Delhi, against their conviction and sentence. The High Court heard both the appeals together and allowed them by a common judgment setting aside the conviction and the sentence imposed upon the two accused and acquitted them. Them State (Delhi administration) has preferred the present appeal against the judgment of the High Court acquitting the respondents of the offences with which they were charged. 3. The facts of the case may be briefly stated. The deceased Mool Chand, a police constable who was in plain clothes, caught hold of Phokan at Qutab Road near Star Hotel at about 2.30 p.m. on June 8, 1971. Phokan had a knife in his hand. He tried to release himself from the hold of Mool Chand but failing in his attempt shouted to Billa who was standing nearby. Billa rushed to the spot in response to the call of Phokan with an open knife. On reaching the spot Billa stabbed Mool Chand in the abdomen. On getting free from the hold of Mool Chand, Phokan inflicted a knife injury on the chest of Mool Chand.Mool Chand gave chase to the assailants but they escaped towards Narain Market. Owing to the injuries, Mool Chand fell near the shop of Subhash Chand (PW 4). According to the prosecution the occurrence was witnessed not only by Subhash Chand but also by Mohinder Nath (PW 5) and Niranjan Singh (PW 7) who gave chase to the assailants.Mool Chand told Subhash Chand that he was a police constable and that Subhash Chand may ring up the police Control Room and inform them of the stabbing incident. Accordingly a message was sent to PW 9 Shiv Kumar at the police Control Room which was received 2.46 p.m. Shiv Kumar transmitted the message to the Fling Squad and informed the Police Station at Sadar Bazar. Soon after, Jaipal Singh (PW 11) reached the spot of occurrence and removed Mool Chand to the hospital. 4. The Investigating officer, Hare Singh (PW 26), went to the place of occurrence but on learning that the injured had been removed to the hospital proceeded there. On learning that the injured was not in a fit condition to make the statement Hari Singh (PW 26) returned to the scene of occurrence and there recorded the statement of eye-witnesses (PWs 4, 5 and 7). 5. On the next day, June 9, 1971, (PW 23), C. M. Ludhiani, made an application to Shri. S. C. Jain, the judicial Magistrate, for recording the dying declaration of Mool Chand. The Magistrate went to the hospital and after satisfying himself that Mool Chand was in a fit condition to make the statement recorded the dying declaration of Mool Chand in the presence of the doctor. Nine days later on June 18, Mool Chand died. Dr. Bhagat Singh (PW 3) performed the autopsy on the dead body of Mool Chand on June 19, 1971. The evidence of Dr. Harish Chander Narang (PW 24), who examined Mool Chand on his admission to the hospital and the post-mortem certificate disclosed that Mool Chand had two stab injuries, one on the left side of the lower abdomen and the other incised wound on the chest to mid-line. The cause of death was peritionitis. 6. The prosecution mainly relied on the dying declaration recorded by the Judicial Magistrate and the testimony of the eye-witnesses PWs 4, 5 and 7. The trial Court accepted the dying declaration as true and trustworthy. It also accepted the testimony of the eye-witnesses and found that the prosecution had proved beyond doubt that the two respondents were the assailants and they caused injuries in the circumstances stated by the prosecution and were guilt of an offence under Section 302, read with Section 34, I.P.C., and sentenced to imprisonment for life. 7. On appeal the High Court in acquitting the accused held that the prosecution had not proved the case against the two respondents beyond reasonable doubt. 8. The High Court accepted the evidence of Shri S. C. Jain, Judicial Magistrate, and found that he is completely an independent witness and that he had no motive to prepare a false record of the statement of the deceased. It held that the statement was made by the deceased before the Judicial Magistrate and the statement contained a truthful version of the circumstances resulting in his death together with the names of the assailants. Having Found that the dying declaration is true and acceptable the High Court proceeded to determine whether the two respondents were the assailants of the deceased. It may be noted that in the dying declaration Mool Chand, the deceased, stated that the caught hold of Phokan who had a knife and when Phokan tried to free himself but could not he called his companion Billa who came their and stabbed him with a knife. The High Court accepted the statement of the deceased that he had caught hold of Phokan and on Phokans calling his companion Billa had come and both Billa and Phokan stabbed the deceased. The High Court after having held that Phokan and Billa were the assailants came to the conclusion that the identify of the respondent as Phokan and Billa had not been established. During the trial Ram Kishan, the accused, admitted in his statement that he was also known as Phokan. On the face of the clear admission by Ram Kishan that he was also known as Phokan there could be very little difficulty in coming to the conclusion that Phokan mentioned in the dying declaration by Mool Chand was also known as Ram Kishan, the respondent in his case. We must confess that we feel considerable difficulty in following the reasoning of the High Court that the prosecution has not succeeded in establishing that Billa referred to in the dying declaration is not the respondent who is also known as Vishwa Bandhu. It is no doubt true that Mool Chand in his dying declaration has not stated that Billa was also known as Vishwa Bandhu. But we find that there is over-whelming evidence to prove that Billa had an alias as Vishwa Bandhu. The High Court while accepting the dying declaration observed that the deceased had named Phokan and Billa as assistants but Vishwa Bandhu accused in his statement under Section 342, Cr.P.C., had denied that his pet name was Billa. He stated that he was also known by the name of Bandhu. The High Court came to the conclusion that there was no clear or convincing evidence on the record to prove that Vishwa Bandhu accused was known as Billa or that it was Vishwa Bandhu, accused, who had given the knife blow to the deceased in the abdomen. 9.On a close scrutiny of the testimony of the eyewitness PWs 4, 5 and 7, we find that trial court was right in accepting their testimony. We find that the reasons given by the High Court for rejecting the testimony of the eye-witness are unsound and unconvincing. 10. According to the prosecution PW 4 saw the occurrence from a distance of 14 feet while PW 7 saw it from a distance of 29 feet. Mohinder Nath (PW 5) was standing near the gents lavatory opposite to the scene of occurrence at a distance of 65 feet. PW 5 stated that he heard Ram Kishan calling his companion by name Billa and further saw Vishwa Bandhu stabbing Mool Chand in the abdomen on the right side and Ram Kishan stabbing Mool Chand in the middle lower portion of the chest. PW 5 further stated that PW 7 and PW 4 ran after the assailants but the assailants escaped inside the Narain Market. The High Court rejected the testimony of PW 5 on the ground that as the witness was standing at a distance of 65 feet from place where the deceased was stabbed and as there was traffic on the road when the occurrence took place, it was possible for the witness to have heard the name of Billa. The High Court also found that if Billa was accompanying Phokan at the time in the normal course he would have been looking towards Phokan and in that case the statement of the witness that Billa was standing with his face towards him cannot be believed. We find that the reasons for rejection of the evidence of PW 5 are totally unsustainable. The occurrence was in broad day-light at about 2 p.m. and we do not see any difficulty in the witness seeing the assailants at a distance of 65 feet even though there would have been traffic on the road. That Billa would have been looking towards Phokan and therefore the evidence of PW 5 that he was standing with his face towards him is unacceptable, is ignoring realities. It is most unlikely that either the assailants or the witness would have taken a definite position and were sticking to that throughout the incident. Billa would have been on the move and so also the witness and we see no difficulty in accepting the testimony of PW 5 that he saw Billa. Equally unconvincing is the reason given by the High Court for rejecting the testimony of PW 7 Niranjan Singh (PW 7) has a laundry. While he was passing in the verandah of the star hotel at 2.30 p.m. he saw Mool Chand holding Ram Kishan by his arm. He also saw Ram Kishan holding a knife in his hand and at that time Ram Kishan known as Phokan tried to free himself and called Billa and whereupon Vishwa Bandhu stabbed Mool Chand with a knife in the abdomen and getting himself freed, Ram Kishan stabbed Mool Chand in the chest. PW 7 stated that he knew Ram Kishan as well as Vishwa Bandhu as they used to come to his laundry to get their clothes cleaned. In his statement to the police the witness had named Billa as Vishwa Bandhu alias Billa. The High Court found in its judgment that as PW 7 had said in his cross-examination that he did not know the name of Vishwa Bandhu before the occurrence, the statement alleged to have been recorded by the police, on June 8, 1971 would not have have been recorded on that date. From the statement of PW 7 in the Court that he did not know the name of Vishwa Bandhu before the occurrence i.e. on June 8, 1971, it cannot be inferred that the statement recorded by the police later in the day in which the witness had named Billa as Vishwa Bandhu alias Billa could not be recorded on that day. The rejection of the testimony of PW 7 on the ground mentioned by the High Court cannot be a accepted. 11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of other eye-witness would not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report. 12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the three eye-witness and accepting their testimony. 13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab. 14. Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment.

Decision:
1[ds]13. The High Court has referred to the discrepancy in the evidence of PW 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of PW 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab.Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous imprisonment11. One other point made by the High Court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by PW 5. As already stated PW 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what PW 4 was concerned was with the transmission of the police and to get help for the injured so that he may be properly treated. The failure to mention the names of othereyewitnesswould not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High Court for rejecting the evidence of PW 4 who gave the first Information Report12. We have no hesitation in agreeing with the appreciation of the evidence by the trial Court of the threeeyewitnessand accepting their testimonyg into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so.He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under Section 326, I.P.C. While setting aside the order of acquittal by the High Court, we find that the two accused are guilty of an offence under Section 326, I.P.C. and impose a sentence of six years rigorous