DHAKKAN LAL Vs. SHIVKANT

JUDGEMENT

(1.) Shiva Kant Respondent is standing his trial under Sec. 302, IPC for the murder of one Basant Rai in the court of the Sessions Judge, Bareilly. The Applicant Dhakkan Lal is the cousin of the deceased, though in his present application and affidavit he has described himself as his nephew. Admittedly, the Applicant is the author of the first information report in the murder case and is one of the principal eye -witnesses of the occurrence. In the beginning, the Respondent was absconding but ultimately he surrendered in court. He was granted bail by the Sessions Judge on 27 -9 -1965. Thereafter the case came up for hearing before the Sessions Judge on three dates but for one reason or the other it could not be taken up. One such date was 17 -1 -1966, when the Petitioner and other witnesses had gone to the court of the Sessions Judge. The counsel for the defence had a heart -attack and on that account an application was moved on his behalf for the adjournment of the case on 17 -1 -1966. So the case was adjourned at about 10.30 a.m. The allegation of the Petitioner is that after coming out of jail on or about 27 -9 -1965, the Respondent had been threatening the Applicant not to appear as prosecution witness. However, no particulars or details of the alleged threat have been mentioned. He also did not file any report regarding the same nor took any action with respect thereto. His allegation further is that on 17 -1 -1966, after the adjournment of the case, he came to the lawn situate in the vicinity of the Sessions Judge's Court, where two other witnesses namely Budh Sen and Basant Ram were sitting from before, enjoying a smoke. It may be noted that Budh Sen is none other than the father of the Petitioner, while Basant Ram is his uncle. The Petitioner further alleges that as soon as he joined his father and uncle, who were sitting on the lawn, the Respondent suddenly appeared on the scene and having whipped out a long knife from his pocket, rushed towards the Petitioner saying that he would kill him, if he appeared as a witness in the murder case. Thereupon the Petitioner as well as his father and uncle rebuked the Respondent and raised an alarm, which attracted about ten persons to the scene of occurrence. The Respondent, however, managed to make good his escape. All this happened at about 11 a.m.

(2.) At 1 p.m. the Petitioner lodged a report at the Kotwali, which lies at a distance of about two miles. The first information report, however, does not mention that the Respondent had threatened the Petitioner on earlier occasions as well. The only witnesses cited in the first information report are his father and uncle. The offences alleged in the first information report fall Under Ss. 352 (assault), 504 (intentional insult) and 506 (criminal intimidation). These are all non -cognizable offences, yet the Petitioner did not file any complaint against the Respondent. He has not been able to give any reason for his failure to do so. Apart from his own affidavit and deposition, the Petitioner has not cared to examine the other eye -witnesses cited in the first information report, namely Budh Sen and Basant Ram. He has not even filed their affidavit. In his deposition, the Petitioner has admitted that the place where he and the other two witnesses were sitting at the crucial moment is at a distance of about 50 or 60 paces from the court of the judge, infront whereof there is a verandah. The Petitioner admits that in the verandah, Police constables generally sit with the under trials who are brought to the Sessions court. Yet no constable, court official; clerk of the counsel etc. came to the help of the Petitioner, when he and his father and uncle raised an alarm. One would expect that in the large lawn, measuring about 150 paces long and 80 paces wide, there should have been some other litigants and witnesses basting in the sun, in the month of January, but the Petitioner states that he had not seen anybody else sitting -on the lawn. According to him, only one or two persons were walking across the lawn, when the Respondent rushed towards him. He does not know the names of those persons nor of those 5 or 10 persons who had collected on the scene after hearing the outcries. The Petitioner did not make any application about the matter to the Sessions Judge, even though the occurrence had taken place in his Court compound. He also did not consult his counsel before going to the thana, though he is a leading criminal laywer of Bareilly.

(3.) The Petitioner admits that he did not like the release of the Respondent on bail by the Sessions Judge. It is alleged by the Petitioner that the Respondent had threatened the other witnesses of the murder case as well, but they did not make any report for taking action against him. The evidence on record shows that the other witnesses of the murder case live in the same Mohalla, where the Petitioner and Respondent reside. If he really wanted to threaten the Petitioner, there were many opportunities for doing the same at some more convenient hour and time. After his release on bail, three dates had already been fixed before 17 -1 -1966 when the Petitioner and other witnesses had come to court, but there is no allegation of any attempted assault in the court compound on those dates. It is difficult to believe that even a hardened criminal would think of assaulting a witness in the premises of the court, in broad day light. And once he intends to do so, he would not rest content by merely showing a knife to him. The Petitioner admits that neither he nor his father and uncle nor any other person who had collected on the spot, chased the Respondent, as he started running away after the assault. The above facts and circumstances and the unsatisfactory evidence of the Petitioner, lead me to think that it is a cock and bull story.