H.S. Thakur, J.@mdashThe Appellant Satish Chander Tyagi (hereinafter to be referred to as the Appellant or Shri Tyagi) has been convicted by the learned Sessions Judge, Shimla, for the offence u/s 302 IPC. He has been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/-. In default of payment of fine, he is to undergo rigorous imprisonment for six months. The fine, if realised, is ordered to be paid to the widow and children of the deceased Gulzara Singh, as compensation. Aggrieved by the said judgment, the Appellant has preferred this appeal.
2. The Appellant and the co-accused Dalip Singh were charged for the offence u/s 302 IPC and 302 read with Section 34 IPC respectively. It is pertinent to point out at this stage that the co-accused Dalip Singh has been acquitted by the trial Court. As such, the appeal has been preferred by Shri Tyagi Appellant alone.
3. The prosecution story is that on July 2, 1982, at about 10.30 P.M. Shri Raghunath Dass Aggarwal, Senior Engineering Assistant in ''Akashvani'', Shimla, which was at that time housed in ''Chidwick House'' Summer Hill, Shimla, went to the Short-waive Transmitter. Five or six minutes thereafter, he left that place in jeep No. HPS-2494, belonging to the ''Akashvani''. Shri Rup Lal Sharma, Senior Technician over there was also with him and the jeep at that time was being driven by Shri Mast Ram. They started from Chidwick House towards Shimla in that jeep. When this jeep reached near the State Bank of India Branch, Himachal Pradesh University Campus, the two accused (Shri Tyagi and Dalip Singh) came there from the opposite side on the road and stopped the jeep by raising their hands. The driver, Shri Mast Ram, on this stopped the jeep and the accused Shri Tyagi picked up a stone and threw it at the wind screen of the jeep resulting into the wind screen being smashed. Thereafter, Shri Tyagi banged the bonnet of the jeep with his hands and asked the driver to drive on the jeep. The driver Shri Mast Ram, however, protested that he would not drive the jeep as Shri Tyagi had broken the wind screen, on this, Shri Tyagi got infuriated and pulled the driver Mast Ram from his seat in the jeep and man-handled him and even gave him fist blows to force him to drive the jeep, on this, the driver agreed to drive the jeep provided Shri Raghunath Aggarwal who was sitting in the jeep would agree to it. Shri Tyagi on this, while holding the collar of Mast Ram with one hand, faced Shri Raghunath Dass sitting in the jeep and asked him that he should allow the driver to drive on the jeep. The said Shri Raghunath, however, told Shri Tyagi that the jeep could be driven away in that condition only with the permission of the Station Director, Shri Khera, who could be contacted on phone for this purpose. On this, Shri Tyagi gave him fist blows and also took out a knife and gave a knife blow to the said Shri Raghunath who warded it off by moving his body towards the other side and his companion Shri Rup Lal Sharma also pulled him towards his side. Consequently, the knife blow did not strike him with full force but he sustained only a small cut. Thereafter, the driver agreed to drive the jeep provided Shri Tyagi released him. As soon as he was so released by Shri Tyagi, the driver ran away towards ''Akashvani'' where the police was on guard duty. While running away, he was also shouting "Mar diya Mar diya".
4. On arrival at the gate of the ''Akashvani'', Mast Ram driver found that the gate had been closed. He then shouted for Head Constable Chhotu Ram, Incharge, of the Guard and told him that Shri Tyagi had smashed the wind screen of the jeep and that he was also threatening with a knife. On this, H. C. Chhotu Ram woke up the constables Gulzara Singh and Khema Ram, who were posted on guard duty but were off duty at that time, telling them to accompany him as Shri Tyagi had damaged the jeep and was also threatening the driver Mast Ram. H.C. Chhotu Ram and Mast Ram then went to the house of the Security Officer of the Himachal Pradesh University nearby to make a complaint at Police Station, Boileauganj, on phone in respect of the incident. There was, however, no phone in the house of the Security Officer who directed them to either go to the University or the University Guest House for this purpose. On this, they started going towards the University. At that time, H. C. Chhotu Ram and Mast Ram were going ahead whereas the two constables Gulzara Singh and Khema Ram were following them. While they were on their way, they saw the two accused coming from the University side and as they passed by Mast Ram driver and H. C. Chhotu Ram, they saw that Shri Tyagi was still carrying a knife in his hand. Mast Ram then pointed, out to the H.C. Chhotu Ram that the man with the knife was Shri Tyagi who had damaged the jeep and was threatening him. Meanwhile, the two constables Gulzara Singh and Khema Ram accosted the two accused and Gulzara Singh then asked Shri Tyagi to stop and also asked him as to why he damaged the jeep and misbehaved with Mast Ram. On this, Shri Tyagi spoke out that he was Tyagi and whether he wanted to die at his hands and he started proceeding ahead. Gulzara Singh constable tried to stop Shri Tyagi and on this Shri Tyagi gave three knife blows on the left chest region of Gulzara Singh from its sharp-edged side which caused three incised wounds in the chest region of the said Gulzara Singh and which started.bleeding. On this, constable Gulzara Singh raised hue and cry shouting "Mar diya, Mar diya, Bachao, Bachao." In the meanwhile, after giving the knife blows to Gulzara Singh, Shri Tyagi ran towards the house of the Security Officer of the University and finding that the door was bolted from inside, he broke a glass which was by the side of the door and made his entry into the house and thereafter by opening Anr. window at the back side of the house, he ran out and made good his escape. The co-accused Dalip Singh also ran towards his village Shanghti. The constable Khema Ram chased Shri Tyagi up to the house of the Security Officer but finding that he had escaped, he came back and then helped the injured Gulzara Singh to go back to ''Akashwani'' by holding him by the arm, while Gulzara Singh had kept his hands on the bleeding wounds on his chest. At the same time, H. C. Chhotu Ram and Mast Ram went to the University and from there lodged a complaint of this incident on the phone to the Police Station, Boileauganj. Thereafter, H.C. Chhotu Ram and Mast Ram came back to ''Akashvani'' and put the injured Gulzara Singh on a cot and started carrying him to the Ripon Hospital. When they were at the gate of the ''Akashwani'', the police jeep came there from the Police Station with two constables and S.I. Dandu Ram and the said Dandu Ram put Gulzara Singh in the jeep and took him to the Ripon Hospital, Shimla. Meanwhile, Inspector Rudh Ram, Incharge Police Station, Boileauganj, also came there. He recorded the statement of H. C. Chhotu Ram with regard to the incident and sent the same to the police station for registration of case against the accused u/s 307 I.P.C. He also recorded the statement of Mast Ram with regard to the earlier incident and sent the same for the registration of a separate case to the said police station. The Inspector Rudh Ram also visited the place of incident, prepared its site plan and collected some blood-stained pieces of tarred road by digging them with pick-axe and also the leaves stained with blood, found over there and put them in a sealed ''dabba''. He also visited the house of the Security Officer and collected the pieces of glass from the window pane which had been smashed by Shri Tyagi by effecting entry into the house as also broken pieces of the wooden frame lying over there.
5. On reaching the Ripon Hospital, the Medical Officer Shri R.S. Chauhan examined Gulzara Singh and prepared a medical certificate with respect to the injuries on his person and thereafter he stitched the stab wounds on his chest region and also gave an injection of morphia to him and then referred him to the Snowdon Hospital, Shimla. The said Gulzara Singh was thereafter taken to Snowdon Hospital where he was admit ted in emergency ward and the Surgical Specialist over there then performed an emergency operation on the said Gulzara Singh to repair the injuries caused to his internal organs as a result of incised wounds. Thereafter, Gulzara Singh showed some improvement for a while but subsequently his condition started deteriorating and on the night intervening 6th and 7th July, 1982, the said Gulzara Singh succumbed to his injuries. Consequently, the offence was converted from the one u/s 307 I.P.C. to that u/s 302 I.P.C..
6. Shri Tyagi was charged u/s 302 I.P.C. while Shri Dalip Singh was charged u/s 302 read with Section 34 I.P.C. Both the accused, however, pleaded not guilty. It may be pointed out that Shri Dalip Singh co-accused was ultimately acquitted.
7. The prosecution has examined as many as 24 witnesses. P.W. Dr. D.V. Behl the then Associate Professor in the Medical College, Shimla, has stated that Gulzara Singh was in a precarious condition as he was feeling intense pain in the wounds and an emergency operation was performed in the morning of 3-7-1982. P.W. 2 Dr. C. Madhav Rao, Professor and Head of Forensic Medicines, H.P. Medical College, has stated that he performed post-mortem examination on the dead body of the said Gulzara Singh on 7-7-1982. According to him, the stab wounds had injured the left lung and stomach and diaphragm which injuries were found to have been repaired through operation and some of them had become infected and pus was present. According to him, there, were three stab wounds by a sharp-pointed single edged weapon on the body of Gulzara Singh, two of them were in the chest and abdominal cavity and one on the left loin and the injuries over chest penetrating into lung and stomach were sufficient to cause the death independently and cumulatively. Ultimately, he opined that the death was due to shock and infection of anti-mortem wounds on chest and abdomen. He further opined that these injuries could be caused by the knife like Ex. P. 1. In his cross-examination, he stated that these injuries could not be caused if the assailant was lying on his back and the victim was lying over the assailant. He has also stated that the death in this case could not be caused by infection alone. P.W. 4 Dr. Randhir Singh Chauhan has stated that he examined Shri Tyagi on 3-7-1982 at 11.30 .a.m and found six injuries on his person and prepared the medical certificate Ex. PF. The version of P.W. 6 Chhotu Ram regarding the incident has already been reflected hereinbefore.
8. The learned Counsel for the Appellant has.raised two preliminary contentions. The first one is that Section 207 Code of Criminal Procedure has not been strictly complied with inasmuch as true map of the place of occurrence has not been supplied to the Appellant. His next contention is that the Appellant was also not given sufficient opportunity to engage a counsel of his choice. At any rate, the learned Counsel for the Appellant has not seriously pressed these contentions. In our opinion also, both these contentions are without any substance.
9. So far as the first contention is concerned, it was pointed out by the learned Counsel for the Appellant on 29th March, 1985, that the copy of the site plan which has been supplied to the accused is not similar to that which has been exhibited in the case as Ex. PW. 24/C. He had consequently prayed that S.I. Dandu Ram be summoned to explain the position. The said S.I. was summoned and was examined on oath by us. He stated in clear terms that the copy of the plan marked ''X'' was not prepared by him nor did it bear his signature. On 30th April, 1985, we considered the matter and passed an order as follows:
The Appellant on the last date of hearing produced a photostat copy marked ''X'' which was alleged to be the photostat copy of the copy of the plan as supplied to the accused alongwith the report u/s 173 Code of Criminal Procedure The Appellant has to-day produced two more copies, one is the photostat copy which is filed with Cr. M.P. No. 45/85 and which has been marked ''X2'' which purports to be of the same plan. The Appellant has filed yet Anr. copy which is written in ball-pen and which also purports to be of the same plan. We have also got photostat copy prepared of this copy which has been marked as ''X1''. We have thus now on the record three photostat copies marked ''X'', ''X1'' and ''X2'' purporting to be of the same plan and which all purport to bear the attestation of Ajit Singh and also purport to have been signed by Dandu Ram, S.I.
On a visual observance, no two copies of these three copies appear to be identical. The only reasonable conclusion is that all the three copies of which these are photostat copies were prepared at three different times by three different processes though by the same person. Mr. Inder Singh, learned Counsel for the Appellant, states that these three copies were prepared out of the record of two sets of documents which were delivered to the accused-persons who were two in number. The endorsement Ex. PW. 24/C as found on mark ''X'' was of course made by him.
The original copy of the plan marked ''X1'' alongwith its photostat copy as also ''X2'' be placed on the record.
We are of the view that true copies of Ex. PW. 24/C were in fact supplied to the Appellant and the co-accused. At the same time, we cannot rule out the possibility that the plan alleged to have been supplied to them may have been prepared by some one at a later stage. At any rate, no prejudice has been caused to the Appellant as we inspected the spot to ascertain the factual position. Similarly, the next contention, as pointed out earlier above, is mainfestly baseless. We have perused the orders passed by the learned Sessions Judge during the course of the proceedings. From the very commencement of the trial, the Appellant had been requesting the trial Court to adjourn the case. On 12-11-1982, the Appellant made a request for adjournment, as he had moved an application in the Supreme Court for transfer of the case from the State of Himachal Pradesh. The case was adjourned to 27-11-82. Another adjournment was given at the request of the Appellant on 27-11-1982 on the ground that the application for transfer of the case had been admitted in the Supreme Court. The case was adjourned to 15-1-1983. Again, adjournment was prayed for on the ground that the transfer application had been fixed for hearing in the Supreme Court on 21-1-1983. The adjournment, on this ground, was also allowed. The case was adjourned to 25-2-1983. On that date, again adjournment was requested on the ground that the case was fixed for the reply of the Stale in the first week of March, 1983, in the Supreme Court. The same was allowed and the case was adjourned to 24-3-1983 with a direction that in case a stay order was not produced, the arguments on charge would be heard. Again, on 24-3-1983, the Appellant filed an application praying that one more adjournment on the ground that his transfer application was likely to be decided by the Hon''ble Supreme Court in near future, be granted. The adjourn-ment was also given on this account and the case was adjourned to 26-4-1983. The charges were framed against the accused-persons on 26-4-1983, It may be pointed out that the Appellant and the co-accused were appearing in the Court with their counsel. On 17-6-1983, the case was again adjourned to 18-7-1983 at the request of the Appellant on the ground that the proceedings had been stayed by the Supreme Court. On 18-7-1983, the case was also adjourned to 2-8-1983 on the ground that no information with regard to further progress of the application pending in the Supreme Court had been received. The case was also adjourned on 2-8-1983 to 17-9-1983 at the request of the Appellant on the ground that the case was still pending in the Supreme Court. The order-sheet of 1-10-1983, shows that the Appellant had engaged S/Shri N.K. Upadhya and S. K. Jain besides other counsel, to defend him. On that date, an application was moved on behalf of the Appellant for permission to recall certain prosecution witnesses who had been already examined during the course of the trial. Inspite of the opposition of the prosecutor, the trial Court allowed to recall the witnesses who had been examined earlier. The judgment was, after hearing the arguments of the learned Counsel for the parties, announced on 17th March, 1984. Almost on all the dates fixed in the case, the Appellant was represented by counsel. As such, it can be hardly assumed that sufficient opportunity was not given to the Appellant to engage a counsel of his choice.
10. It may be pointed out that during the course of arguments, we deemed it proper to inspect the spot to appreciate the evidence on record. The spot was inspected in the presence of the learned Counsel for the Appellant and the learned Deputy Advocate General. P.W. Chhotu Ram, Head Constable was also present. It was pointed out by Chhotu Ram, Head Constable that the initial place of occurrence pertaining to the jeep was in front of the State Bank of India, which was towards the south of the point "B" as indicated in the map, Ex. PW. 24/C. Just below that spot is the house of the Vice Chancellor of the University. In the aforesaid map, place of occurrence pertaining to the stabbing of the deceased Gulzara Singh by the Appellant is at point "A", which is about 1/2 km. from the place of initial occurrence. Towards the left of this point on the main road there are two poles, one of telephone and the other of electricity which are about 4 feet apart from each other. The house of the Security Officer (Mark "C" in the plan) is at a distance of 30 feet from point "A" on the right side of the main road but abuts on the road. Near the entrance door of this house, there is a window with glass panes. One of such glass panes was found broken by the Appellant to enter inside. On entering the house, there is a small passage leading to the kitchen and on either side of this passage is a bedroom. There is a window in the kitchen and the Appellant is alleged to have jumped out of that window towards the back side of the house. The height of the window is about 4''/5'' from the ground and there are scattered stones thereon. On the backside wall of the house, there is a narrow passage but not a regular path for going anywhere, where the Appellant is stated to have jumped. At a distance of about 200'' is the gate of ''Akashvani'' transmitter and within the premises of which ''Chidwick'' police post as also the residential quarters of the police guard were located. Chhotu Ram, Head Constable, stated that the police post had since been shifted to some other place. The residential quarter of Gulzara Singh deceased was about 70'' from the gate of the ''Akashvani'' transmitter towards left. From the gate of the ''Akashvani'' transmitter towards north, there is Sentry Post near the old building almost at the same distance as the residential quarter of Gulzara Singh deceased. From near the gate there is path leading towards Shangti village. In between the house of the Security Officer and the gate of ''Akashvani'' is a tin shed located on the right side of the road, that is, towards the east which was closed on both the sides with iron sheets. There are also two poles near the ''Akashvani'' transmitter, one of them is electricity pole and the other is telephone pole.
11. We have discussed the evidence of some of the medical doctors, briefly above. P.W. 5 is Dr. K.C. Yadav who at the relevant time was Medical Officer in the Ripon Hospital, Shirnla. He has stated that he examined the Appellant on 3-7-1982 at 11.30 a.m. and six injuries were found on his person, out of which injury No. 1 was incised wound of about 1/2'' length placed almost vertically over the posterior aspect of right thigh just 3" below the galuteal fold which was 2 cm. wide and 1-1/2'' deep.
12. P.W. 7 Shri Mast Ram has stated that for the last 10/11 years, he was posted as driver in the ''Akashvani''. On 2-7-1982, he was driver of Jeep No. HPS-2492 and at about 10.40 p.m. while he was taking S/Shri Raghunath Aggarwal and Rup Lal Sharma in that jeep from ''Akashvani'' to their residences and the jeep reached near the State Bank of India Branch, University Campus, the two accused came from the opposite direction out of whom he knew the accused Dalip Singh prior thereto but not the other co-accused (the Appellant). Both stopped the jeep by coming in front of it by raising their hands. The Appellant then kept his hand on the bonnet of the jeep and asked him to switch of the jeep which he did while the Head-light remained on. The Appellant then picked up a piece of brick and threw at the windscreen and smashed it. Thereafter he caught held and pulled him out of the jeep and enquired from him whether he would take the jeep from there or not. The said witness told the Appellant that he would not take jeep any further as he had broken its windscreen. The Appellant then pushed him to a water drainage by the side of the road and enquired whether he would take away the jeep or not. The witness again replied in the negative. The Appellant took out a knife from his pocket and pointed out at him and then enquired whether he would take away the jeep or not. Thereupon, the witness replied that he would drive away the jeep in case the occupants of the jeep agreed to it. The Appellant then pointed out the knife at Mr. Aggarwal, who was sitting in the jeep and asked him to direct the driver to drive away the jeep. A knife injury was also inflicted on Shri Aggarwal. Thereupon, the witness requested the Appellant to release him and that he would drive away the jeep. The Appellant released him and the witness ran away therefrom and raised an alarm and went to the security guards of the University asking them to report the matter to the police on phone. The witness went to the gate of the ''Akashvani'' and shouted from its gate to the security guards of the ''Akashvani'' for help. On this, Head Constable Chhotu Ram, Incharge of the Police Guard, came to the gate and the witness informed him that the Appellant had broken the wind-screen of the jeep and was threatening him with a knife and that they should come to their rescue. The Head Constable then asked Constables Khema Ram and Gulzara Singh who were on guard duty under him to follow him and that he was going ahead with the driver. He and Head Constable Chhotu Ram then went to the house of the Security Officer to ring up the police from there. However, there was no telephone at the house of the Security Officer and he and the Head Constable Chhotu Ram proceeded towards the Guest House of the University. According to him, as they were going towards the Guest House of the University, the two accused came from the opposite direction and the Appellant at that time, was still having a knife in his hand. The two constables Khema Ram and Gulzara Singh, at. that time were going behind him and the Head Constable. The constable Gulzara Singh (the deceased) then enquired from the Appellant as to why he was quarrelling with Mast Ram. The Appellant replied as to whether the said constable knew him and that his name was Tyagi. The Appellant wanted to proceed further but Gulzara Singh, deceased, slopped him and on this, the Appellant attacked the deceased with his knife and gave three or four knife blows on his left side chest on which the said Gulzara Singh raised an alarm "Mujhe Maar Diya Bachao," The Appellant then ran towards the house of the Security Officer, broke a glass of the window of the house and went inside the house. He was chased by Khema Ram constable but he could not catch him. Gulzara Singh was thereafter taken towards the ''Akashvani''. The matter was reported to the Police Station, Boilcauganj on the phone. According to the witness the police collected the broken pieces of glass and window frame from the house of the Security Officer and also collected blood stained stones and leaves from the place of incident. In cross-examination, the witness admitted that he knew the Appellant prior to the incident. He has stated that Gulzara Singh constable had only tried to stop the Appellant from proceeding further but did not catch hold of him.
13. P.W. 10 Khema Ram constable has supported the statements of Head Constable Chhotu Ram and Mast Ram, on all material particulars. He also identified the pant Ex. P. 6 which the Appellant was putting on at the time of incident as also the clothes Gulzara Singh was putting on. According to the witness, the place of incident was at a distance of about 70 steps from the gate of ''Akashvani''. P.W. 11 Dr. (Mrs.) Suman Gupta at that time was Radiologist in the Ripon Hospital. She has stated that she took X-ray photographs of the right wrist, right ankle and right foot of the Appellant at the instance of the police and found that there was fracture of navicular bone in the right foot but no other fracture. According to her, this injury could be sustained by a fall. P.W. 12 Dr. Sanjiv Raj Kapoor, Registrar, Surgery, Medical College, has stated that the deceased Gulzara Singh was brought to the Snowdon Hospital in ''he male surgical unit on 3-7-1982 at 1.55 a.m. when he examined him. According to him, the deceased at that time was in respiratory distress and was crying with pain. He has also described the wounds in his chest and stated that the said Gulzara Singh died in the hospital at 12.45 a.m. on 7-7-1982. P.W. 13 is Shri Raghunath Dass Aggarwal. He has stated that from 1978 to December, 1982, he remained posted as Senior Engineering Assistant in the ''Akashvani'', Shimla. He was on duty on the Short-waive Transmitter at the ''Akashvani'' Summer Hill Shimla up to 10.30 p.m. on 2-7-1982. He left the ''Akashvani'' by Jeep No. HPS-2492 driven by Mast Ram with Shri Rup Lal Sharma, Senior Technician. When jeep was coming towards Shimla and near the branch of State Bank of India in the University Campus, the two accused came from the opposite direction and stopped the jeep by raising their hands. The driver stopped the vehicle. The Appellant picked up a stone and threw at the windscreen of the jeep and the wind-screen of the jeep was broken. The Appellant asked the driver to drive on the jeep but he refused to do so and protested to the Appellant as to why he had broken the windscreen, on this, the Appellant went to the driver in a threatening mood and pulled him out of the jeep and also started threatening him to drive away the jeep and also gave him some blows. Thereafter, the driver told the Appellant that he would drive the jeep only if Shri Aggarwal directed him to do so. On this, the Appellant became more furious and started man-handling the driver and even threw him in the drain on the side of the road. Thereafter, the Appellant brought the driver near to his seat and while holding him with one hand, he started giving Shri Aggarwal fist blows while he was sitting in the jeep. He has further stated that he refused to oblige the Appellant and on this the Appellant took out a knife out of his pocket and tried to give him a stab blow on the left of his rib but before the knife struck his body he pushed his body a little away from his side and his companion Rup Lal also pulled him towards himself and for this reason the knife blow did not cause serious injury on his body but only a small cut of knife. Thereafter, the driver was released by the Appellant and as soon as he was so released, the driver ran away raising an alarm "Maar Diya Maar Diya". Thereafter, both the accused ran towards the side to which the driver had gone. The witness and Shri Rup Lal continued sitting in the jeep. He has stated that sometime thereafter Mast Ram driver again came to them and informed that the Appellant had stabbed the police constable Gulzara Singh. He has stated that they remained in the jeep till 4.30 or 5.00 a.m. and during this period the police had also come there. The witness has further stated that he did not know the accused-persons prior to the incident and that he came to know about their names at the time of the incident as the co-accused Dalip Singh was dissuading the Appellant by saying "Tyagi don''t do this", at the time of incident.
14. Shri Kirpal Singh (P.W. 14) is the brother of the deceased Gulzara Singh. He was residing with the deceased. The deceased Gulzara Singh had his wife and two children with him. He has stated that he woke up Gulzara Singh at about 10.40 p.m. saying that Shri Tyagi had broken the windscreen of jeep of Mast Ram (PW) and that he should come out. According to him, Gulzara Singh put on his uniform and went out and after sometime he heard Gulzara Singh shouting "Tyagi Ram ne mujhe chaku maar diya mujhe bachao." He has pointed out that on hearing this, he and the wife of Gulzara Singh came out of the room and saw that constable Khema Ram was bringing Gulzara Singh by catching hold his arm and clothes of the deceased were drenched with blood and he had three wounds in his chest region which were profusely bleeding According to him, the wounds were bandaged with a ''dapatta'' of Gulzara Singh''s wife and his muffler. He has also stated about the taking of Gulzara Singh to hospital and after he died in the Snowdon Hospital, his body was taken by him and the wife of Gulzara Singh to his native place for cremation after its post-mortem. Shri Jai Lal (PW. 15) has stated that the clothes of Gulzara Singh were taken into possession in his presence in the Snowdon Hospital on 3-7-1982 and were put in a sealed packet. He has further stated that one pant of the Appellant was also taken into possession. P.W. 16 is Shri Hira Lal who has supported Shri Jai Lal (P.W. 15) on material particulars.
15. P.W. 17 is Shri Amar Singh, who was working as labourer under a contractor in the University Campus and joined the investigation of the case. He has stated that the Inspector Rudh Ram in his presence interrogated the Appellant who made a statement that he had thrown the knife in the bushes of ''Kashmal'' behind the P.W.D. Store in the ''Nallah'' and that he could get it recovered. The knife was produced by Shri Tyagi from the bushes. He has stated that the knife was in open condition and had also blood stains and it appeared to have been rubbed on the stone. He has also proved Ex. PW. 17/B. According to him, the knife was put in a wooden box duly sealed after measurement. P.W. 18 Shri Santosh Kumar has supported the statement of PW Amar Singh with regard to the recovery of the knife at the instance of Shri Tyagi. P.W. 19 is Shri S.N. Sharma, Security Officer. He has stated that he was sleeping in his residence in the H.P. University Campus allotted to him as Security Officer and he heard passers-by saying outside his residence that Shri Tyagi and his friend had stopped his jeep and were quarrelling and requested him to let them use his phone to report the matter to the police. He has also stated that he told that he did not have any telephone. He also heard the sound of breaking of glass in his residence. He has given the dimension of the glass that was broken. He has further stated that one window of his house on the back side was opened. Shri Bhupinder Singh (PW. 20) has stated that he was posted as Inspector (SHO) Police Station, Sadar Shimla and during the period the deceased remained admitted in the hospital, he used to go to see him daily there. According to him, on 4-7-1982, when he was sitting near the bed of the deceased in the hospital, the Inspector Rudh Ram (SHO) Police Station, Boileauganj came there at about 11.00 a.m. and recorded his statement u/s 161 Code of Criminal Procedure He also narrated the statement that Gulzara Singh had made to Inspector Rudh Ram. Shri Chattar Singh (PW. 21) who was Head Constable at Boileauganj Police Station has stated that he had accompanied S.I. Dandu Ram when he went to ''Chidwick'' Guard after information was received at the Police Station that constable Gulzara Singh had been stabbed. On their arrival, they saw that the stabbed wounds on the chest of Gulzara Singh were bleeding and he was being carried on a ''Charpay'' near the gate of ''Akashvani''. He was also deputed by Inspector Rudh Ram alongwith other constables to search for the co-accused in village Shanghti. He has further stated that in the morning at about 6.00 a.m. he saw Shri Tyagi coming out from Shanghti jungle towards the house of co-accused Dalip Singh. Shri Tyagi was arrested by him. He has pointed out that he found that at that time the pant of Shri Tyagi was torn below the right hip which appeared to have been torn by a fall and through friction against hard surface. He also saw a bleeding injury in the leg of Shri Tyagi at the place where his pant was torn. He even found swelling in his right ankle and he was complaining of pain in his right hand joint. The co-accused was also arrested by him. The two accused were thereafter taken to Police Station Boileauganj. P.W. 22 is Dandu Ram, S.I. who was posted as Sub Inspector at Police Station, Boileauganj. He has stated that on 2-7-1982 at about 11 p.m. Inspector Rudh Ram told him that he had received information that constable Gulzara Singh had been stabbed by Shri Tyagi. He then took the jeep at the gate of ''Akashvani'' and saw that the deceased was being brought on a ''Charpay''. He has also stated that Gulzara Singh told him that Shri Tyagi gave him three knife blows on his left chest region. The deceased according to him was put in the jeep and taken to Ripon Hospital. Shri Madan Lal, ASI (PW. 23) has stated that he was posted as ASI at Police Station, Boileau-ganj and on 3-7-1982 at 12.35 p.m. the statement purported to have been made by HC Chhotu Ram to Inspector Rudh Ram was sent to Police Station, Boileauganj by Inspector Rudh Ram and formal FIR Ex. PW. 23/A was recorded. He has further stated that on the same night, the statement of Mast Ram driver was also received at the police station sent by Inspector Rudh Ram from the spot and on the basis of the same, FIR No. 35 of 1982 dated 3-7-1982 was recorded. PW 24 Shri Rudh Ram.has stated that from 1979 to 1983, he remained posted as Inspector (SHO) Police Station, Boileauganj, Shimla. He has, inter alia, stated that a telephonic message was received by him at the Police Station, Boileauganj from HC Chhotu Ram who was Incharge of ''Chidwick'' Guard Summer-Hill, informing him that Shri Tyagi had stopped the jeep driven by PW Mast Ram near the Branch Office of the State Bank of India and also narrated the facts regarding the incident that took place over there. He has also pointed out that the deceased was being taken in a police jeep to hospital. He has given the details of the investigation made by him including the statements recorded of the witnesses. He has stated that the case was converted from the one u/s 307 IPC. Section 302 IPC. It is not necessary to give full details of his statement.
16. It may be noticed that Shri Tyagi in his examination u/s 313 Code of Criminal Procedurehas denied in toto all the incriminating facts which came in evidence against him. He has only asserted that he had been involved in a false case at the instance of H.P. University authorities as his relations with them were strained at that time. In his judgment, the learned trial Court has made reference to numerous documentary evidence. It is not necessary to refer to them over again.
17. The prosecution version has been already reflected above. The relevant statements of the witnesses have also been briefly discussed.
18. We have heard the learned Counsel for the parties at length and have also perused the entire evidence on record.
19. From the narration of the evidence briefly discussed above, it cannot be disputed that Shri Gulzara Singh deceased on 2-7-1982 was posted as a constable on Guard Duty at the Short-waive Transmitter of the AIR housed in the building known as ''Chidwick'' house. It can also not be disputed that Shri Chhotu Ram, Head Constable was the Incharge of this Guard. It is proved beyond a reasonable doubt that on the night of 2-7-1982 at about 11.00 p.m. the deceased Gulzara Singh was taken to Ripon Hospital when three incised wounds were found in his chest, abdomen and loin, caused by sharp-edged weapon and he was referred to the Snowdon Hospital and an emergency operation was performed by Dr. D. V. Behl, Surgical Specialist upon him. It is also proved that Gulzara Singh succumbed to his injuries on the night intervening 6th and 7th July, 1982. The Director of Forensic Medicines in the Medical College performed post-mortem examination on the dead body of Gulzara Singh and found that the two injuries on his chest and abdomen had cut the lung and diaphragm of Gulzara Singh. There is no doubt that the stabbed wounds on the person of Gulzara Singh were the direct result of his death.
20. The question that is to be determined is whether the prosecution has proved beyond a reasonable doubt that the stabbed wounds on the person of Gulzara Singh were caused by Shri Tyagi, and by no one else.
21. At this stage, we may also refer to the statement of the deceased Gulzara Singh recorded u/s 161 Code of Criminal Procedure which has been tendered in evidence as his dying declaration. The statement was recorded on July 4,1982 by the Inspector (S.H.O) West, Shimla. It is stated by Gulzara Singh that he was posted at Chidwick Guard. On 2-7-1982 at about 10.45 p.m. Head Constable Chhotu Ram woke him up and told him that near S.B.I. Branch of H.P. University, Satish Tyagi had broken the wind screen of the jeep and was threatening to kill with a knife. After saying so, the Head Constable went ahead. It is further stated by him that Khema Ram and he followed him. He was wearing his uniform. He further stated that near the gate, Mast Ram driver of the AIR jeep met them. They first went to the residence of Mr. Sharma, Security Officer to ring up the police but there was no telephone at his residence. He has further stated that when they started towards the Guest House for ringing up to the police station, they saw Satish Chander Tyagi coming from the side of Guest House with a knife in his hand but Dalip Singh was empty handed. He has also stated that he knew them. According to him, Head Constable Chhotu Ram and driver Mast Ram were ahead and Khema Ram and he behind them. He asked Satish Tyagi as to where he was going and why he picked up the quarrel. On this, Tyagi is stated to have replied that his name was Tyagi and that whether he wanted to die at his hands. He has also stated that after saying so, he started going forward. It is also stated by him that when he asked him to stop, Shri Tyagi attacked him with a knife which he was holding in his hand and gave three knife blows on his left spleen. He has stated that as soon as he cried that he had been killed and that he should be saved, Shri Tyagi ran away. He was followed by Khema Ram. He also stated that he put his hand on his injuries and started going towards the Guard Room. According to him, in the meanwhile Khema Ram again reached there and took him to the Guard Room and bandaged his wounds with a scarf and ''dapatta''. He has further stated that at that time his clothes were besmeared with blood. He has further stated that after sometime, Head Constable Chhotu Ram and the driver also reached there and they were about to take him to the hospital but in the meantime a jeep of Boileauganj Police Station arrived there and the S.H.O. first took him to Ripon Hospital and later on to the Snowdon Hospital in the jeep. He has also stated that after getting his blood-stained clothes taken off, the police took the same into possession. He has further stated that Satish Tyagi had run away presuming that he had been done to death. He asserted that it was his good luck that he survived inspite of receiving three knife blows. He also stressed that blood had oozed out in sufficient quantity from his wounds and he was feeling weakness. Ultimately, he stated that he is not sure whether he. would survive or not and that take care of his wife and children.
22. It is contended by the learned Counsel for the Appellant that no reliance can be placed on the statement of the deceased Gulzara Singh. It may be noticed that Gulzara Singh died on the night intervening 6th and 7th July, 1982. The only plea that has been advanced by the Appellant in his statement recorded u/s 313 Code of Criminal Procedure is that he had been involved in a false case at the instance of Himachal Pradesh University authorities as his relations with them were strained. The record, however, shows that no such suggestion was made to any witness in cross-examination. At the same time, it is not clarified by the Appellant as to why the University authorities had bad relations with him and who were the persons who had such strained relations with him. These facts were within his special knowledge and he chose to keep them secret. As such, the plea is entirely frivolous. The deceased was a young-man of about 28 years and was stout as described in the post-mortem report. He had no previous enmity with the Appellant. In fact, in his dying declaration the deceased stated that the other co-accused was empty handed and had no weapon in his hand. In his statement, the deceased has specifically stated that he was given three knife blows by the Appellant. Gulzara Singh deceased was not sure that he would survive. In fact, he asserted that after his death his wife and children be looked after. Under such a situation, it can be hardly believed that the deceased would have falsely implicated the Appellant. In his statement, he has categorically said that "I asked Satish Tyagi as to where he was going and why he took up the quarrel. On this, Tyagi replied that his name was Tyagi and that whether I wanted to die at his hands. After saying this, he started going forward. When I asked him to stop, he (Tyagi) attacked with a knife which he was holding in his hand and gave three knife blows in my left spleen." Such a conduct of the Appellant apparently shows that he had least hesitation in taking the life of the deceased. It can further be inferred that the Appellant was a person of ferocious disposition. The deceased in the discharge of his duties was legally entitled to stop him. As such, we have no hesitation in concluding that the statement made by the deceased is a true version of the incident. At the same time, such a statement made by the deceased can legitimately be termed as a dying declaration.
23. The version of the deceased is corroborated by three P.Ws. They are Head Constable Chhotu Ram, Mast Ram driver and Khema Ram, who are the eye-witnesses to the incident of stabbing. They have categorically stated that the stabbed wounds were inflicted in the left chest region of Gulzara Singh by none else but the Appellant with a knife which was in his hand at that time. The witnesses have also stated that after giving these blows, Shri Tyagi ran towards the house of Security Officer broke open the glass by the side of the entrance door and effected his entry into the house. Constable Khema Ram has stated that after giving up the chase of Shri Tyagi, after he entered into the house, he came to the deceased Gulzara Singh and helped him in bringing him to the ''Akashvani'' where they were on guard duty. Soon thereafter, Head Constable Chhotu Ram accompanied by Mast Ram informed the Police Station, Boileau-ganj, on phone and stated that Shri Tyagi broke the wind screen of the jeep and when the police came to the help of Mast Ram, Shri Tyagi seriously injured Gulzara Singh deceased by inflicting injuries on his body with a knife. This information given on the phone is proved by the document Ex. PW. 24/A as this report was immediately noted down by Inspector Rudh Ram, Incharge, Police Station, Boileauganj, in the register of daily diary. The said Inspector then immediately deputed S.I. Dandu Ram of this Police Station in a jeep to the ''Akashvani'' with other officials of the police and he himself also proceeded to that place in a bus.
24. The learned Counsel for the Appellant has referred to certain negligible minor discrepancies in the evidence. It may be observed that minor discrepancies cannot be termed as badges of falsehood. In fact, the Supreme Court in
25. We had inspected the spot and have described our observations earlier above. Shri Tyagi, as discussed earlier above, forcibly entered into the house occupied by the Security Officer of the University, by smashing the glass-pane of the window. Thereafter, he opened the backside window and jumped down. In this process, he could have sustained the injuries found on his person. At any rate, it was also open to the Appellant to state as to how he suffered these injuries. He could have explained the cause of the injuries and such facts were within his special knowledge. The Appellant, however, desisted himself from giving a proper explanation in this behalf. The learned Counsel for the Appellant has contended that the possibility of causing the injuries to the deceased in his self defence cannot be ruled out. This appears to be a mere after-thought. The Appellant has not made such a suggestion to any witness and has also not raised such a plea even in his statement recorded u/s 313 Code of Criminal Procedure As such, the plea apparently appears to be baseless and cannot be sustained.
26. It is contended by the learned Counsel for the Appellant that the identity of the Appellant has not been established as he was not known to the prosecution witnesses. He has pointed out that it was incumbent on the part of the prosecution to hold an identification parade. This contention in our view has no force. No doubt, Shri Raghunath Dass Aggarwal stated that he did not know the Appellant at the time of the incident but in his cross-examination he stated that he came to know about the name of the Appellant as the other co-accused was dissuading the Appellant by saying "Tyagi do''nt do this", at the time of the first incident. As such, it can be easily inferred that he knew the name of Shri Tyagi for being responsible for the first incident. Similarly, almost all the witnesses, that is, Mast Ram, Khema Ram and Head Constable Chhotu Ram have categorically stated that they knew Shri Tyagi even prior to the incident. It may be mentioned that even at the time of the incident, the Appellant threatened the deceased Gulzara Singh saying that he was Tyagi and whether he wanted to die at his hands. Even Chhotu Ram, Head Constable informed the police on phone with regard to the incident and he clearly stated that Satish Tyagi had inflicted wounds on the body of Gulzara Singh deceased. There are some other witnesses also who have established the identity of the Appellant.
27. The learned trial Court has thoroughly examined and considered the evidence on this point and has come to a positive conclusion that knife blows were given by Shri Tyagi to the deceased. We have also perused the record ana have no doubt to differ with the view taken by the trial Court.
28. The evidence on record clearly shows that it was a cold-blooded murder. The deceased Gulzara Singh was a young-man of 28 years and has left behind his widow and two children. The Appellant has acted with a reckless manner and has intentionally caused the death of the deceased. The Appellant after giving knife blows to the deceased immediately ran to the house of the Security Officer, broke the glass of the dimension of 4" 3" by the side of the door and jumped inside, to make good his escape. As pointed out earlier above, he opened the window on the back side of the house and then jumped down. It is highly probable that the Appellant sustained the injuries while effecting entry into the house over a broken glass and then jumped down from the window from the back side to a place which was slopy and haying lot of bushes. It is fully established that pant Ex. P. 6 which the Appellant was putting on at the time of his arrest next morning at 6.00 a.m. was torn from a place immediately below his hip which was bloodstained and soiled and below that torn place, he had also sustained incised injury. This clearly shows that while making his escape, he had a hard rub against some substance as a result of which not only pant got torn but it also caused injuries at the place from where the pant was torn. At the time of spot inspection, we noticed scattered stones on the back side of the house whereon the Appellant had jumped through a back window. The recovery of the knife with which the Appellant stabbed the deceased Gulzara Singh was made by the Appellant. We examined the knife and the said knife can be opened only by press-button system. Such knives are generally stated to be used for stabbing. The Appellant had also threatened the occupants of jeep when the first incident of smashing the window-screen took place near the S.B.I. Branch within the University Campus. The learned Sessions Judge has rightly observed that the Appellant was not tortured by the police when he was in police custody and effected the recovery of the knife. We are fully satisfied that while the Appellant tried to make good his escape through the house of the Security Officer, he firstly broke open the glass and thereafter jumped down from the backside window and sustained the injuries. He could not go for away due to the injuries and was thus arrested next morning at a short distance from the place of occurrence coming through a jungle.
29 The upshot of the above discussion is that we are firmly of the view that the offence u/s 302 I.P.C. has been fully established against the Appellant. Considering the evidence on record, we have no reason to differ with the view taken by the learned trial Court. In fact, there is no other reasonable possible view to be taken than the one taken by the trial Court.
30. The result of the above discussion is that we find no merit in this appeal and the same is dismissed.
