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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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