STATE OF HIMACHAL PRADESH Vs. WAZIR CHAND

JUDGEMENT

(1.) Both these appeals by special leave arise out of a judgment rendered by High Court of Himachal Pradesh in Reference No. 1 of 1973 and Criminal Appeal No. 36 of 1973. Both the appeals arise from the same judgment and were therefore heard together and are being disposed of by this common judgment.

(2.) The occurrence which gave rise to the present appeals took place on 7th August 1972 a little after 10.30 p.m. Parshottam Lal according to prosecution who was fatally injured in this occurrence had a few days prior to 7th August 1972 earned a prize in the amount of Rs. 5100/- in a private lottery. Along with some other amount which he had with him, it is alleged, he usually kept Rupees 8000/- in his pocket. On the date of the occurrence deceased Parshottam Lal accompanied by one Om Prakash alias Pashi visited Jyoti Cinema in the second show. Accused No. 2 Raj Kumar was also in the theatre at that time. At about this time accused No. 1 Wazir Chand (appellant in Criminal Appeal No. 369/75 and respondent No. 1 in Criminal Appeal No. 59/75) and Joginder Singh (respondent No. 3 in Cri. Appeal No. 59/75) were seen conversing among themselves in the varandah of the theatre. The second show was over around 10.30 p.m. Deshraj P. W. 3 who was also enjoying the picture came out of the theatre and proceeded towards his house and on the way he crossed accused No. 3 Joginder Singh whose clothes appeared to have been stained with blood. Proceeding ahead, Deshraj heard a shout and rushed in that direction. He found Parshottam Lal injured lying on the ground and he inquired from Parshottam Lal as to what had happened whereupon Parshottam Lal told him that:"Wazir Chand Hawker doing business near Prem Bus Company injured him with a knife and at that time Joginder Singh son of Nathu of Girth Sakna and Raj Kumar, brother of Wazir Chand were with him and they beat him and information should be given to his relatives". Deshraj went to the house of Parshottam Lal and informed his wife Smt. Pushpa, P. W. 5 and she along with Daya Ram and Sita Ram came to the scene of occurrence but in the meantime Parshottam Lal succumbed to his injuries. Deshraj gave information of the offence at Kangra Police Station around mid-night time and investigation was commenced. A search of the clothes of the deceased then put on by him led to the recovery of Rs. 71/- and a bunch of keys. The point worthy of notice is that the large cash which Parshottam Lal was alleged to be carrying was not found on his person and a suspicion arose that the motive for murder was robbery. A search of the house of accused No. 1 Wazir Chand was taken and except a paltry amount no cash was recovered. Accused No. 1 Wazir Chand was arrested on 8th August 1972 from the house of Raghunath Singh, P. W. 16 and at the time of his arrest on a search of his person, Banyan Ext. B. 18, and Pant, Ex. P-19 alleged to have been stained with blood, were recovered. Information given by accused No. 1 while in custody led to the recovery of blood-stained knife, Ext. P-1 from a bush of Nealkanthi and it was attached. Accused No. 2 Raj Kumar could not be traced till 20th August 1972 when he surrendered in the Court of Judicial Magistrate, Pathankot. He was arrested and the information given by him while in custody led to the recovery of a ring and a watch pledged with one Jagir Singh, P. W. 21 on 31st August 1972. Accused No. 3 Joginder Singh was arrested by Head Constable Sunka Ram, P. W. 23 on 9th August 1972 and on a search of his person currency notes worth Rs. 28.15, one iron ring and a railway ticket were recovered. After completing the investigation, the accused were chargesheeted and ultimately came to be committed to the Court of Session where a charge was framed against accused No. 1 Wazir Chand for committing murder of Parshottam Lal punishable under S. 302 of the Indian Penal Code, and against accused No. 2 Raj Kumar and accused No. 3 Joginder Singh for committing an offence under S. 302 read with Sec. 34 of the Indian Penal Code.

(3.) The defence of accused No. 1 Wazir Chand was that he caused injury to Parshottam Lal in exercise of the right of private defence of body in that when he was peeling apple for his wife who was then pregnant, deceased Parshottam Lal accompanied by Onkar Chand P. W. 17 and one Om Parkash alias Pashi came over there and started beating him. At that time Parshottam Lal according to the defence of accused No. 1 Wazir Chand felled him and sat on his chest and was pressing and he felt suffocated and wielded his knife not to kill Parshottam Lal but to save himself. The defence of accused No. 2 Raj Kumar and accused No. 3 Joginder Singh was one of total denial.