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

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 appealsVishwa 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 ofs (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 them 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. The cause of death was peritionitis.      6. The prosecution mainly relied on the dying declaration recorded by the Judicial Magistrate and the testimony of thes PWs 4, 5 and 7. The trial Court accepted the dying declaration as true and trustworthy. It also accepted the testimony of thes 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.

Reasoning: 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