State of H.P. vs Jagbir Singh

R.S. Thakur, J.—This appeal against acquittal is directed against the judgment of the learned Chief Judicial Magistrate, Una, dated July 23, 1979.

The accused Respondent Jasbir Singh alias Jagbir Singh alias Jaggi, in this appeal (hereinafter referred to as "the accused") is the resident of Santokhgarh town near Una. The case of the prosecution against him was that on December 29, 1977, at about 5.30 p.m. Darshan Singh accompanied by one Kashmir Singh was coming from ''khud Swan'' by the side of Santokhgarh after answering the nature''s call. They were at that time chit chatting with each other and also laughing. Meanwhile, when they were near the ''Sardarniwaia Well'' in Santokhgarh town, the accused came from the side of his house and asked them as to why they were laughing to which said Darshan Singh replied that there was nothing bad in having a laugh. The accused on this became infuriated and threw a remark at the said Darshan Singh ''BARE BADMASH BANTE HO'' (you try to be a great goonda) and then taking a knife out of his pocket, he attacked said Darshan Singh with that knife and inflicted two blows with the sharp edge side of the knife on the chest of said Darshan Singh and then ran away from the scene of occurrence with the knife. Besides Kashmir Singh at that time one Jugal Kishore was also there following them at some distance. Said Kashmir Singh and Jugal Kishore then helped said Darshan Singh to reach home. Tn fact Jugal Kishore accompanied them part ot the way and then went ahead to inform the family members of said Darshan Singh of the incident and accordingly informed his brother Gharan Singh. Said Darshan Singh was then taken to the Givil Hospital at Una and after his admission in the said hospital, the Medical Officer attending upon him. Dr. H. R. Sharma, at about 11 p.m. the same day, wrote a chit to the Station House Officer. Police Station, Una, informing him that this was a medico legal case. The Station House Officer then after recording this information on his daily diary went to the hospital and recorded the statement of Darshan Singh u/s 154 of the Code of Criminal Procedure at about 11-45 p.m. on the same day and also took into his possession his blood stained clothes, namely, one vest and one sweater which said Darshan Singh was putting on at the time of the incident.

While lodging the F.I.R. said Darshan Singh had claimed that the accused had been harbouring enmity against him on account of an incident which had taken place some time prior to this incident. The incident was narrated this way that the accused had started belabouring one Sewa Singh of the same village Santokhgarh as he suspected that said Sewa Singh had been teasing his sister. Said Darshan Singh then intervened and rescued said Sewa Singh from the accused and since then the accused was suspecting that he (Darshan Singh) was also an accomplice with said Sewa Singh and had threatened said Darshan Singh with dire consequences in case he ever dared to come to his ''mohalla'' that is his residential locality.

Then after investigation, the accused was challaned u/s 307/324 of the Indian Penal Code by the Polict and was thereafter committed to the Court of the Sessions Judge at Una for trial as the offence u/s 307 of the Indian Penal Code was exclusively triable by him.

At the commencement of the trial before the learned Sessions Judge, he found that no prima facie offence u/s 307 of the Indian Penal Code was made out against the accused and the offence u/s 324 of the Indian Penal Code only was made out. He accordingly, vide his order dated January 22, 1979 directed that the accused be tried by the Chief Judicial Magistrate at Una for the offence u/s 324 of the I.P.C. after framing a charge against the accused under that section on the same day, that is, January 22, 1979.

The learned Chief Judicial Magistrate then recorded the statements of the accused on February 15, 1979, after explaining the charge u/s 324 of the I.P.C. to the accused, as to whether he pleaded guilty to the charge or claimed trial. The accused pleaded not guilty and claimed to be tried.

The learned Chief Judicial Magistrate then proceeded to record the prosecution evidence during the course of which the prosecution examined eight witnesses with a view to bringing home the offence to the accused.

The accused was also examined under the provisions of Section 313 of the Code of Criminal Procedure when he simply denied all the inculpating circumstances against him as appearing in the prosecution evidence and asserted that he was falsely implicated in the case on account of enmity. The learned Chief Judicial Magistrate then vide the impugned judgment came to the conclusion that the offence u/s 324 of the I.P.C. was not proved against the accused beyond all reasonable doubt and he, therefore, acquitted him.

We have heard the learned Counsel for the parties and also carefully gone through the entire evidence on record. In order to appreciate the correctness or otherwise of the findings of the lower Court, it would be but proper to resort to reappraisal of the posecution evidence on record.

The first witness examined by the prosecution is Darshan Singh (PW-1) victim of the assault by the accused who was examined on March 19, 1979. He has stated thai about three years prior to the date of his deposition in the Court, a quarrel had taken place between Sewa Singh of his village with the accused when the accused charged said Sewa Singh of having misbehaved with his sister. He then inter vened and rescued said Sewa Singh from the. accused and on this the accused started having mimical relation with him also. He further stated that on December 29, 1977, at about 5.30 p.m. he and one Kashmir Singh of his village were coming from khud Swan side after answering nature''s call and wheal they were near the well of Sardarni, they were talking and laughing. Meanwhile, the accused also came there from the side of his house and asked them as to why they were laughing to which he replied that there was nothing bad in laughing. The accused thereon remarked to him (Darshan Singh) that he was posing to be a big goonda (Bare Badmash bante ho) and then took a knife out of his pocket and attacked him (Darshan Singh) when he inflicted two knife blows from its sharp edge side, one on his chest and the second on his left ribs and then ran away from there. According to him, besides Kashmir Singh one Jugal Kishore also saw the incident as he was a little distance behind them coming from Swan side. He was thereafter shifted to hospital at Una at about 9 p.m. and there the police also came to the hospital and his statement (Ex. PA) was recorded. The Medical Officer attending upon him then also prepared a medical certificate with regard to the injuries on his person (Ex. PB). He further stated that he was putting on one vest (Ex. PI) and a sweater (Ex. P2) at the time of incident and as a result of blood oozing from his wounds, they had become bloodstained and they also had cuts corresponding to the injuries on his body inflicted by the accused and both these garments were taken into possession by the police after his statement Ex. PA was recorded in the hospital.

In cross examination he stated that he had passed matriculation examination in the year 1975 and was class-mate of said Kashmir Singh who was also a matriculate. He also admitted that said Jugal Kishore had also worked in his house for about one month some time prior to the incident. He has further stated that at the time of the quarrel of the accussed with Sewa Singh, the accused had given beating to Sewa Singh but no report of this occurrence was made anywhere. He further states that at the time of incident it was winter season but he was only putting on a vest and a sweater and no shirt, nor was he covering himself with any blanket or ''Khesi''. He further stated that he and Kashmir Singh had gone together to answer the call of nature and were also coming back together. According to him, he saw Jugal Kishore at the place of incident only after he was inflicted injuries by the accused and could not say as to from which side he had come. According to him the residential house of the accused was at a distance of 1/2 kilometre from the place of occurrence. According to him at the time when the accused inflicted the knife blows to him, he was holding knife in the tnanner that the blade of the knife was towards his thumb side of the hand. The blade of the knife was sharp on one side with a pointed edge arid it was an ordinary domestic ktufe of a medium size and he had kept standing even after the! nfliction of the knife blows to Mm. He admitted that the place of incident is frequented by a number of persons but at the time of the incident none was there as it was growing dark, the place of the incident is, however, a thoroughfare. According to him, he raised an alarm when the knife blows were inflicted on him but none came there except the two persons named above. According to him, he was medically examined in the hospital at about 9.40 or 9:45 p.m. and he was still putting on those clothes at that time which were on his body at the time of the incident and they were later on handed over to the police at about 11 p.m. by removing them from his body. He denied the suggestion from the defence side that on the relevant day he had/ taken liquor along with his friends and that a scuffle had taken place ''between the accused and his friends and that this incident had not taken place near the well.

Prem Prabhakar (PW-2) has stated that he had brought PW, Darshan Singli to hospital from Santokhgarh to Una in a car after the incident and in his presence the police had taken into possession the vest Ex. P. 1 and sweater Ex. P. 2 in the hospital''at Una vide Memo. Ex. PC which contains his signature.

Similar is the statement of Dev Singh (PW-3).

Kashmir Singh (PW-4) has stated that at the relevant time he and Darshan Singli were coming from Swan khud after answering the nature''s call and were chitchatting and laughing and when they had reached Sardarniwala well, the accused met them while coming from the side of his house and enquired from them as to why they were: laughing to which they replied that there was nothing bad in laughing. The accused onthis tooka knife out of his pocket andattacked said Darshan . Singh while uttering the words ''Bare Badriiash Bante Ho'' and then inflicted two knife blows, one on the chest arid second: on the ribs of Darshan Singh and then ran away from there. Besides him and Darshan Singh, Jugal Kishore was also there and was coming behind them. He has also affirmed that said Darshan Singli at that time was putting on vest Ex. P. 1 and sweater Ex. P. 2. In cross examination, he admitted that Darshah Singh had been his friend for the last 5/6 years as they were class mates and had passed their matriculation together 1-1/2 years prior to the occurrence. He also stated that the accused, at the time of his deposition in the case, was a college student. His house is about 100 yards from the house of said Darshan Singh. He further stated that though it was a winter season at that time, but it was not very cold. He also deposed that Darshan Singh had met him in Swan khud and they were coming back home together though they had gone there on their own. According to him, Darshan Singh at that time was wearing a vest, sweater and pyjama while he was putting on a vest, a shirt and a pyjama. He also deposed that when the accused was giving the knife blows to Darshan Singh, he did not try to intervene as he had himself become frightened. He admitted when the sweater Ex. P-2 was shown to him in the Court that it had blood stains but that there was no blood around the two cuts on the said sweater. He also stated that after the incident, he took Darshan Singh to his house from the place of occurrence when they came across 50/60 persons on the way and narrated the incident to them but he could not give their names. According to him, he was examined by the police on the next day of the incident in the panchayat-ghar.

Jugal Kishore (PW-5) has also supported the version as given by Darshan Singh and Kashmir Singh. According to him at the time of incident he was also coming from Swan khud side and said Darshan Singh and Kashmir, Singh were ahead of him at a distance of about 10 metres when he saw that the accused met them near Sardarniwala well and he gave two knife blows to Darshan Singh and ran away from there. According to him he joined the investigation on January 4, 1978, when the police took into possession the knife Ex. P. 3 and also prepared a rough sketch thereof (Ex. PW 5/B) which contained his signature. According to him, after the incident, the said Darshan Singh was pressing the wounds with his hands and he and Kashmir Singh took him towards his house for about 20 metres and thereafter he left them and went to the house of Darshan Singh to inform his family members of the incident and thereafter he went to his house. According to him, he was examined by the police on the next day of incident.

The next witness of importance is Dr. H.R. Sharma (PW-6) who had attended upon the accused when he was brought to the hospital at Una after the incident. He has deposed that he examined Darshan Singh after he was brought to the hospital at 9 p.m. and found the following injuries on his person:

An incised wound in the centre part of chest left side present. Size 1.25 cm. x 1/2 cm. in the central part into half cm. deep. Proving (SIC) was done. Entry was not detected to the pleural cavity. It is spindle shape widest in the centre and situated 1-1/2" below and 1/2'' lateral to the left nipple. Margin smooth and clean cut. Wound is horizontally present.

An incised wound present in the lower part of the chest left side size 1.25 cm. x 1/2 cm. in the central part into l/2 cm. deep. Proving (SIC) was done. Entry was not detected, to the abdominal or pleural cavity. It is spindle shape widest in the central part and situated 5" above and 1-1/2" lateral to the umbilicus. Margin smooth and clean cut. Wound is horizontally present.

He then issued a Medical Certificate Ex. PB and according to him, both the injuries were of simple nature caused by sharp edged weapon within probable duration of six hours from the time of the examination. He also deposed that after the patient was admitted in the hospital he had informed the police as a result whereof the police came to the hospital at about 11 p.m. the same night and he gave the medical certificate Ex. PB, to the police. He further deposed that later on to the queries of the police, he had opined (vide Ex. PW 6/D) in writing that the injuries in question were on the vital part of the body and they could not possibly result in death since they were partially deep to the muscles only. He then again later on opined(vide Ex. PW 6/F) that these injuries caused with the knife Ex. P 3 could have resulted in death in case the vital organs had been injured and that the cut marks on the vest Ex. P. 1 and sweater Ex. P. 2 were corresponding to those injuries found on the person of Darshan Singh (vide M.L.G. Ex. PB).

In cross examination, he stated that these injuries on the person of Darshan Singh were immediately stitched and dressed after his admission in the hospital. He further stated that these injuries at the time of the examination had been noted by him on the indoor patient ticket and the M.L.C. Ex. PB was prepared on the basis of the indoor patient-ticket and on the basis of physical examination of the patient. This Medical Officer was then directed by the Court at the request of the defence counsel to produce the indoor-patient ticket. This Medical Officer was again examined by the Court when he deposed that he had brought the admission register and the treatment register concerning the injuries of the patient maintained in the hospital but was not in a position to produce the indoor patient ticket as the same could not be traced despite search and appeared to have been either lost or, destroyed. He denied that no details of injuries were noted down by him at the time of the admission of Darshan Singh in the hospital. He further stated that he had not noted down as to what clothes the patient was putting on in the hospital. He further stated that the clothes were shown to him by the police on 13-7-1978 for verifying whether the cuts appearing thereon corresponded to the injuries on the person of Darshan Singh as detailed in the M.L.C. (Ex. PB) and he gave his opinion vide Ex. PW 6/F on the basi of the injuries described in Ex. PB to the effect thatsthey did correspond to the injuries and at that time those clothes were in a sealed cover. He admitted that there should have been blood around the cut marks on the clothes and that around the cut mark A on vest Ex. P-1 there was no sign of blood and similarly there was no blood on either of the cut marks on the sweater Ex. P. 2. He denied that these injuries could be caused by a fall on some sharp edged object or by thorny bushes. He was emphatic that both the injuries were caused by one and the same weapon. He denied that the sharp side of the knife Ex. P. 3 shown to him in the Court was not sharp but rather blunt and asserted that in fact its sharpness was more than normal. He also denied that the injuries on the person of Darshan Singh could not be caused by a knife Ex. P. 3. He admitted that the wounds on the person of Darshan Singh were already dressed when he was brought to the hospital and he treated them after removing that dressing and also described the injuries in the M.L.C. Ex. PB.

Ram Krishan (PW-7) is the witness to the effect that on 4-1-1978 the accused produced the knife Ex. P. 3 before the police in the police station and was jaken into possession by the police vide Memo. Ex. P 5/A which contained his signature and a rough sketch of the same was also prepared at that time which is Ex. PW5/B which too contained his signature and he has stated that after putting this knife in a sealed packet, the seal was handed over to him.

The next witness is Madho Ram, S.H.O. Police Station, Una, (PW-8) who had investigated the case. He has stated that on receiving the information from the hospital (vide Ex. PW. 6/A) he proceeded to the hospital after recording the contents of this information in the daily diary (copy Ex. PW 8/A).

He then recorded the report of injuries on the person of Darshan Singh (Ex. PW 6/B) and thereafter recorded the statement of the injured u/s 154 Code of Criminal Procedure (Ex. PA) and also investigated the case and during investigation, he suhimohed the accused to the police station when he handed over the knife Ex1. P3 to him voluntarily He. also deposed that after recording the statement of Darshan Singh in the hospital he also took his clothes that is, the vest Ex. P. 1 and sweater Ex. P. 2 into his possession which was put on by Darshan Singh at the time of incident. Later on he also obtained certain medical opinion from the Medical Officer concerned concerning the injuries on the person of Darshan Singh and then challaned the accused.

The accused has simply denied the accusation''s against him and asserted that he had been falsely implicated in this case. He has also examined one witness in defence Rattan Singh (DW-1) which is of no consequence as he has only expressed his ignorance about the fact that the accused was involved in any offence.

We have given pur utmost and earnest consideration to the evidence on record the gist of which has also been narrated above and we have no doubt in our mind that neither the Sessions Judge nor the Chief Judicial Magistrate, Una, who rendered the impugned judgment, have brought about a judicial approach to the facts of the case which could justifiably be expected from them. As regards the Sessions Judge, we feel that his approach to this case has been, to say the least, immature, cursory and callous. As we have observed earlier, the accused was committed to the Sessions Court at Una for trial under Sections 307 and 324 of the Indian Penal Code. The learned Sessions Judge, however, was of the opinion that prima facie, on the basis of the depositions and documents on record, no offence u/s 307 I.P.C. was fdund made out. He was patently in error in coming to this conclusion.

Section 307 of the Indian Penal Code reads as under :

Whoever does''any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be giiilty of murder shall be punished with imprisonment of either description for a term which may extend to ten years, arid shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Thus while properly construing these provisions, it becomes clear that in order to see whether the offence under the said Section is made out, the following points have to be kept in mind:

(i) whether the accused did the act in question?

(ii) whether he did this act with the intention or knowledge and under such circumstances that if he had caused the death through that act of the victim he would have been guilty of murder ?

Thus the law in the first part of the Section envisages that if the accused appears to have done an act with intent or knowledge and under such circumstances that if by that act he had caused the death of that person, he would have been guilty of murder, that would be sufficient to charge him u/s 307 of the Indian Penal Code whether any result adverse to the person against whom such act was directed had ensued or not and then the second part of the provisions of the Section provides more stringent punishment in case even hurt is caused to such person by such act. As regards the intention or knowledge accompanying the offending act and the circumstances under which it was done, the same can be gauged by the act itself or the circumstances attendant upon it.

Now in the instant case there was prima facie evidence before the Sessions Judge that the accused was not on good terms with the victim Darshan Singh. Further even at the time of incident, before the accused inflicted the knife injuries upon the person of Darshan Singh, the accused had told said Darshan Singh that the latter claimed to be a goonda and it was thereafter that he gave him two stab wounds with knife. It is also clear that both the stab wounds were inflicted by the accused on a most vital part of his body, namely, the chest and left ribs of chest near the first injury and in fact when said Darshan Singh was brought to the hospital at Una, the first anxiety of the Medical Officer who attended upon him was to ascertain whether those injuries had not affected the vital organs just below them which were likely to sustain injury in view of their location. Luckily, for the said Darshan Singh, however, it was not so. The fact, however, remains that simply because these injuries had not hurt the vital organs of Darshan Singh, did not take this act on the part of the accused out of the ambit of the provisions of Section 307 of the Indian Penal Code and in our view the offence u/s 307 of the I.P.C. was, prima facie, made out against the accused and the learned Sessions Judge failed in his duty in not properly appreciating this evidence and holding that no offence u/s 307 of the I.P.C. was made out and thus transferring the case for trial to the Chief Judicial Magistrate, Una, u/s 324 of the Indian Penal Code.

We would have remanded this case on this short ground alone to the Sessions Judge, Una, for retrial of the accused for the offence u/s 307 I.P.C. but we feel that in the circumstances of this case, it would not be expedient and in the interest of justice to do so. Admittedly, the offence took place in December, 1977 and the trial of the accused commenced in the Courts below in January, 1979 and we are now in the middle of 1985 meaning thereby that the sword of Damocles has been hanging over the accused for the last eight years and it would indeed be a sheer hardship to the accused if he is again compelled to face Anr. trial and that too for a more serious offence u/s 307 of the Indian Penal Code. We, however, take this occasion to observe that no Sessions Judge in future would dispose of the cases of such nature in such a light and cursory manner as has been done in the case in hand.

Now coming to the impugned judgment of the learned Chief Judicial Magistrate we have no doubt in our mind that he has totally misappreciated the prosecution evidence on record which has resulted in an erroneous verdict of acquittal. In fact there could not be a better foolproof case against the accused u/s 324 of the Indian Penal Code.

The first factor that weighed with the lower Court in throwing out the prosecution case against the accused was that the medical evidence, that is, the M.L.C. Ex. PB was not admissible in evidence being the evidence of secondary nature. The lower Court came to this conclusion on the basis of the fact that Dr. H. R. Sharma, while in the witness box had deposed that he had prepared this medical certificate on the basis of the bed head ticket or indoor patient ticket of Darshan Singh which was prepared by him at the time when he examined the injuries on the person of the accused immediately after admission of Darshan Singh in the hospital on 29-12-1977 at about 9.30 p.m. and that it has not been proved legally that the said bed head ticket had been lost so that the secondary evidence could become admissible. In our opinion this finding of the lower Court is completely erroneous. No doubt the Medical Officer has deposed that this certificate was prepared on the basis of bed head ticket but that does not make this medical certificate as a secondary evidence. The Medical Officer has categorically stated that he had himself medically examined the injuries on the person of Darshan Singh, measured them and had also ascertained that they had not injured any vital part of the body like abdominal or pleural cavity and according to him these details he had entered first on the bed head ticket and then later on in the medical certificate Ex. PB. There was, however, nothing improper''about it. In fact in the circumstances of cases of this nature, no medical certificate could be prepared in original by the same person while examining and measuring the injuries. They are only noted down on certain other documents (like bed head ticket) and some times on a rough paper and then a proper medico-legal certificate is prepared. Once the Medical Officer who has issued the certificate, categorically states that he had prepared the certificate after himself examining and measuring the injuries, there remains no doubt about its authenticity and in such circumstances it cannot be dubbed as a secondary evidence and the lower Court allowed itself to fall into an error by holding it to, be so.

Then the learned lower Court has taken into consideration very minor and insignificant discrepancies in the prosecution evidence, and has thus completely lost sight of the substratum of the prosecution case and the preponderance of probabilities in the evidence Which clearly fastened the guilt upon the.accused.

Some of such factors which weighed with the lower Court are as follows; firstly, the Court has stated that although according to, Darshan Singh both he and Kashmir Singh had gone together to the bank of Swan khud to answer the call of nature and had also come back together but according to Kashmir Singh, they had gone separately but were coming back together. Secondly the improbable behaviour of Kashmir Singh and jugal Kishore in not intervening when the accused started attacking Darshan Singh with knife and also not giving a chase.to the accused when he was bolting away from the scene of occurrence. Thirdly, although according to Darshan Singh he raised hue and cry after he was stabbed by the accused but none came to the scene of occurrence althpugh the incident took place on the main thoroughfare in village Santbkhgarh and a number of houses were near the place of occurrence. Fourthly, although according to the prosecution the vest Ex. P. 1 and sweater Ex. P. 2 which Darshan Singh was putting on at the time of incident had cuts corresponding to the wounds but there were no blood stains round-about those cuts which in the ordinary course of nature should have teen there. Fifthly, that there was friendship between Darshan Singh and Kashmir Singh and also Jugal Kishore who had even served in the house of Darshan Singh prior to the incident.

From this appreciation of evidence on the part of the lower Court, however, we feel that the lower Court, instead of drinking at the source, has tried to search for the cesspools for this purpose.

There is categorical evidence on record that the venue of offence is none else but the path near the Sardarniwala well in Santokhgarh village. There is no doubt that the witnesses including the victim Darshan Singh and the accused are all residents of village Santokhgarh and as such knew each other very well. There is no denial on the record that the bank of Swan khud is the place where the residents of Santokhgarh go for defecation. The PWs Darshan Singh and Kashmir Singh have categorically stated that they had gone to answer the call of the nature at the relevant time to the bank of Swan khud and were coming back home together when the incident took- place. We do not think it was of any importance when FW Darshan Singh stated that he and Kashmir Singh had gone together to the bank of Swan khud while Kashmir Singh said that he had gone on his own and not with Darshan Singh. Kashmir Singh has, in no uncertain terms claimed that he was with Darshan Singh at the time when the accused attacked him by coming from the side of his house after protesting as to why they were laughing and remarking to Darshan Singh that he posed to be a big goonda. Simply because these two persons are friends, which has been clearly admitted even by them as also being classmates, it cannot be said that the evidence of Kashmir Singh becomes tainted or tutored. Rather it is but natural that since there was intimacy between the two, they were together at the time when the incident took place. Further no suggestion was made while Kashmir Singh was in the witness box that he or his family had any enmity with the accused or has family either prior to or after the incident. Then there was also nothing unusual or improbable in the other eye witness PW Jugal Kishore being present at the time of the incident as he has also categorically stated that fee too was coming from the side of Swan khud after easing himself off over there, it was also of no importance or significance why said Kashmir Singh or Jugal Kishore did not try to apprehend the accused. Said Kashmir Singh has clearly stated that he did not do so as he was afraid for his own life. This, in the circumstances, cannot be said to be unnatural. After all, the accused at that time had a deadly weapon in his hand and had said Kashmir Singh tried to intervene, it was not improbable that he would have also met the same fate at the hands of the accused as Darshan Singh did. Then it can also be safely assumed that after the injuries were inflicted on the person of Darshan Singh, the prime concern of Kashmir Singh and Jugal Kishore was to inform the family members of said Darshan Singh and to take him home at the earliest so that steps could be taken to save his life rather than go on wild goose chase after the accused which, in the circumstances, was not even safe for them. It is also of no consequence that no person responded to the alarm being raised by Darshan Singh at the time of incident if any such alarm was raised at all, or no other person came to the place of incident as it was a winter night.

Then in the post incident era also the entire sequence of events appears to be absolutely natural. Steps were taken to take said Darshan Singh from Santokhgarh to hospital at Una where he was taken by a car and admitted in the hospital for the treatment of his injuries. After Darshan Singh was admitted in the hospital, the Medical Officer Dr. H.R. Sharma, attending upon him, immediately informed the police through a ruka (Ex. PW 6/A). The ''ruka'' naturally found mention in the daily diary of the police station, Una, and the Station House Officer thereafter promptly went to the hospital and as said Darshan Singh was in a fit condition to make a statement, the S.H.O. recorded his statement u/s 154 Code of Criminal Procedure. It is significant to note that said Darshan Singh while making this statement has categorically stated that the accused was harbouring animosity towards him eversince he had intervened to save Sewa Singh of his village who was being belaboured by the accused for teasing this sister prior to the incident. He has also categorically stated as to how the incident took place and who were eye witnesses of the incident. This clearly rules out the possibility that said Darshan Singh got this statement recorded after due deliberation or under tutoring to involve the accused in a false case. Said Darshan Singh and the two eye witnesses Kashmir Singh and Jugal Kishore have in no ambiguous terms stated while in the witness box, that these injuries on the person of said Darshan Singh were inflicted by none-else but the accused by taking knife out of his pocket.

We also feel that simply because no blood was found on one of the cuts marked A in the vest Ex. P. 1 corresponding to the injury and also on the cuts on the sweater Ex. P. 2 is of no consequence in view of this categorical evidence. It may be noted that at least in the other corresponding cut of vest Ex. P. 1 there were blood stains and then it has also been admitted that both the vest and the sweater were blood stained. Even if there were no blood stains on the cuts of vest at mark-A and the corresponding cuts on the sweater, is of no importance. No doubt it has come on the record that after these injuries were inflicted on the person of Darshan Singh, he had pressed them with both his hands while he was taken home from the place of incident. The possibility cannot be ruled out that while pressing his wounds with his hands he was not pressing the clothes he was putting on exactly at the points where the vest and the sweater had cuts with the knife. It has also come in evidence that before said Darshan Singh was removed from Santokh-garh to Una hospital, his injuries had been dressed up. Although it was not elucidated from said Darshan Singh as to when this dressing was done and who did it. But it can be safely assumed that it was done before he was removed to the hospital and in these circumstances, there could not be much blood even on the clothes of said Darshan Singh and it can also be safely assumed that no blood stains came even on the cuts on the vest and the sweater.

In view of the above discussion, we have no hesitation in holding that the offence u/s 324 of the Indian Penal Code has been brought home to the accused beyond any shadow of reasonable doubt and the learned trial Court erred in acquitting him of the charge.

The lower Court has cited the relevant portion of the judgment of their Lordships of the Supreme Court, rendered in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, , as follows:

Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.

It may, however, be noted that in the backdrop of the facts and the circumstances of the case, the lower Court has improperly and unjustifiably acted just to the contrary to the principles enunciated in this citation of the authority.

In view of the above discussion, we accept this appeal, set aside the order of the lower Court dated July 23, 1979 and hold the accused guilty of the offence u/s 324 of the Indian Penal Code and conviet him thereunder.

Let the accused be now heard on the question of sentence.

Order dated 29-7-1985

The accused/Respondent has been found guilty for an offence u/s 324 of the Indian Penal Code. He is to be heard on the question of sentence. Bailable warrant to issue to the accused/Respondent in the sum of Rs. 2,000/- for his appearance in the Court. The accused/Respondent shall appear in the Court on August 14, 1985.

Order dated 14-8-1985

We have heard the accused-convict and his counsel on the question of sentence. The learned Counsel for the accused- convict has contended that this is a fit case where lenient view is called for and that instead of sentencing the accused-convict, he should be extended the benefit of Probation of Offenders Act. The grounds urged by the learned Counsel are that the accused is a young-man and first offender having two young kids to support and besides he has also got a government job and in case he is ordered to suffer incarceration in jail, he is definitely to lose his government job with consequential hard ship to his children and that by his mixing up with the hardened criminals in jail, he may also adopt the same complexion and character when he comes out of the jail.

We have carefully considered these submissions of the learned Counsel but in the instant case we feel that the accused-convict does not deserve to be extended the benefit of Probation of Offenders Act. In the first place, as we have already discussed in the body of the judgment, the accused-eonvict was liable to be tried for the serious offence u/s 307 I.P.C. and the learned Sessions Judge had erroneously held that this offence was not made out on the facts on record and consequently sent him to the Chief Judicial Magistrate, Una to be tried for the offence u/s 324 I.P.C. We stayed our hands from remanding this case afresh for retrial to the Sessions Judge u/s 307 I.P.C. on account of the fact that the case against the accused had already hung fire for a long time and it was not thought fit in the interest of justice to let him go through the same ordeal all over again.

The fact, however, remains that the facts on record clearly made out a case against him u/s 307 I.P.C.

In the second place, we find that the accused-convict had tried to put an end to the life of his victim Darshan Singh on the least provocation and that too with a knife whereby he delivered two blows on the vital part of the body of said Darshan Singh. We strongly abhor and disapprove this type of knife cult which is something unusual to this part of the country, that is, the State of Himachal Pradesh and it is the duty of this Court as also of every Court in the State to come with a heavy hand on such offenders.

We are, therefore, of the opinion that the accused-convict deserves to be sentenced. While meteing out the sentence to the accused u/s 324 I.P.C. however, we are again inclined to take a lenient view in the light of the fact that the accused-convict has two young kids to support and he is at present in government service. Therefore, instead of sentencing the accused-convict to imprisonment, we are only sentencing him to fine. We, therefore, sentence the accused-convict to pay a fine of Rs. 2,000/- and in default he shall undergo simple imprisonment for a period of six months. The accused-convict shall deposit the fine of Rs. 2,000/- in the Court of the Chief Judicial Magistrate, Una, on or before August 30, 1985. Out of the amount of fine, when realised, a sum of Rs. 1,000/- shall be paid to PW Darshan Singh by way of compensation under intimation to this Court.