Gurdeep Bagga vs State
1985 Latest Caselaw 417 Del

JUDGMENT

Aggarwal, J.

1. The appellant Gurdeep Bagga alias Pinki has been convicted for the offence punishable under S. 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 2000/- and in default to undergo rigorous imprisonment for six months. He was also charged for the offence under S. 27 of the Arms Act and sentenced to rigorous imprisonment for two years. The sentences were ordered to run concurrently.

2. Along with the appellant ASI Amar Singh and his son Ravinder Pal Singh alias Pappi were also tried on the charge under S. 302 read with S. 34 of the Indian Penal Code. They were, however, given benefit of doubt and acquitted.

3. The scene of the crime is the Haus Khas market. Smt. Sudarshan Verma (hereinafter referred to as P.W. 9) has a gas agency at E-9, Haus Khas. P.W. 9 is doing the business under the name and style of Mohinil Gas Agency. E-9/3 is the number of the shop of P.W. 9. Adjoining to the shop of P.W. 9 on the right side is the shop E-9/2 of Mayur Tailors. On the left side is shop No. E-10/1 of Gupta fancy Stores. The shop of Navyug Tailor is the third shop towards the left of the shop of P.W. 9. There is a verandah in front of the above said shops and beyond the verandah is the road. The occurrence is alleged to have taken place on the road in front of the shop of P.W. 9.

4. P.W. 9 Smt. Sudarshan Verma, P.W. 10 Prem Chand Gupta, P.W. 12 Sushil Kumar, P.W. 13 Kamal Anand and P.W. 15 Rameshwar Dass are alleged to be the eyewitnesses to the occurrence. The deceased Atam Prakash Bhandari (hereinafter called 'Bhandari') is the younger brother of P.W. 9. P.W. 10 has a Paint shop at E-11/3 Haus Khas main market. P.W. 12 Sushil Kumar is an employee of P.W. 9 and was in charge of the show room 'Mohinil Gas Service'. P.W. 13 is a friend of the deceased and is stated to have come to the shop at about 5 or 5.15 p.m. to meet the deceased. The deceased Bhandari was the Manager at the shop of P.W. 9. P.W. 15 is the proprietor of the shop Navyug Tailor.

5. The case for the prosecution as unfolded by P.W. 9 is that on 8th October 1980 at about 5.15 or 5.30 p.m. she was in the shop. Sushil Kumar and Kamal Anand were also with her in the shop. Kamal Anand had come to meet Bhandari. At that very time ASI Amar Singh, his son Ravinder Pal Singh alias Pappi and Gurdeep Bagga alias Pinki came to the shop, Amar Singh asked P.W. 9 for a new gas connection for the accused Gurdeep Bagga. Amar Singh said that Bhandari had promised to give him a new gas cylinder. P.W. 9 told Amar Singh that she could not give any new cylinder and that Bhandari was about to come and he should talk to him. There was an exchange of hot words between P.W. 9 and all the accused. Amar Singh said 'Main use Lamba pa Doonga'. Pappi threatened "Main use Dekh Loonga'. Pinki remarked 'Main aaj use chhorunga nahin'. P.W. 9 retorted that she was used to such threats and they should go out of the shop and wait for Bhandari to come. All the three accused went out of the shop. Within about 5 or 7 minutes Bhandari came on his Vespa scooter and parked the scooter in front of the shop. (P.W. 9 stated that the scooter was parked where her shop and the shop of Janak Gupta meet.) She saw Amar Singh and Pappi catching Bhandari and Pinki with a dagger stabbed Bhandari at the chest. Bhandari ran towards Navyug Tailor. Pinki followed him and gave another blow to Bhandari. She ran after Pinki and her brother and was able to catch hold of Pinki but Pinki succeeded in giving the second stab to Bhandari. She also in the process of catching Pinki got a cut with the dagger on her left wrist. Pinki kicked her with his leg and she fell down. Thereafter all the accused escaped. Bhandari fell down in the verandah in front of the shop of Navyug Tailor. P.W. 9 further stated that she with the help of Sushil got a three-wheeler scooter and took Bhandari to Safdarjung hospital where he succumbed to the injuries.

6. On receiving information about the incident P.W. 32 Sube Singh, Sub-Inspector, first went to the spot of occurrence and finding that the injured has been removed to Safdarjung hospital reached Safdarjung hospital. An application was made to find out if the injured was in a fit condition to make a statement but the doctor vide endorsement Ex. P.W. 26/M certified that the patient was not fit to make a statement. P.W. 32 recorded the statement Ex. P.W. 9/A of P.W. 9 and with his endorsement Ex. P.W. 32/A sent the report Ex. P.W. 9/A at 6.50 p.m. to the police station for formal registration of the case, on the basis of which formal report Ex. P.W. 26/F was recorded at 7.10 p.m.

7. Ex. PW 17/A is the medico legal report regarding the admission of Atam Prakash Bhandari in the Safdarjung hospital. According to the medico legal report the injured was accompanied by Sudarshan Verma and was admitted in the hospital at 6.10 p.m. The medico legal report further records that the patient had stated that he was assaulted by Pinki. If further records that the patient expired in the casualty at 6.30 p.m. P.W. 17 Dr. Matta was the first to examine Bhandari and on examination she found the following injuries on the person of Bhandari :

"1. One clean incised wound on the chest left side about 2 1/2" x 1" in size with clean cut margins about 3" away from the midstream line and 2" below the level of nipple. (Depth not probed).

2. Clean incised wound left elbow 2 1/2" x 1" in size with clean cut margins. (Depth not probed).

8. Dr. Matta testified that the patient had told her that he was assaulted by Pinki. The doctor gave evidence that she found the patient conscious and oriented and he knew about his surroundings.

9. P.W. 26 Dr. L. Femate performed post-mortem on the dead body of Bhandari on 9th October 1980 at 3 p.m. P.W. 26 on examination of the dead body found the following injuries :

"1. Stab wound over the left side of the chest in the 5th intercostal space 4 c.m. left to mid-line 7.5 c.m. medial and downward to left nipple 16.5 c.m. below the medial end of the left clavicle. The wound was obliquely placed, measuring 2.4 c.m. x 1 c.m. x cavity deep (12 c.m.) directed medially upwards, penetrating the thoracic cavity at the left inter-costal space, measuring 2.4 x 1 c.m. after entering the thoracic cavity, it penetrates the pericardium at the anterior aspect and then it penetrated the heart at the anterior wall of the right ventricle and then went upward into the right atrium via the medial tricuspid valve, and after penetrating the inter-auricular septum, it pierced the posterior wall of the left atrium and then ended there. The wound was directed upwards medially and backward. About 100 cc of blood was collected in the pericardial sac. About two litres of blood is collected in the thoracic cavity.

2. Incised wound on the posterior aspect of left elbow measuring 4 x 1.6 x 0.8 c.m.

3. Abrasion below right knee measuring 2.5 x 1 c.m.

10. The doctor gave the opinion that the death was due to shock as a result of injury No. 1.

11. The prosecution case further is that at about 7 p.m. the appellant Gurdeep Bagga presented himself at the police station defense Colony and submitted the writing Ex. PW 26/J (held to be inadmissible as the statement is made before the police). Gurdeep Bagga was arrested and he made a disclosure that he had kept the dagger concealed under the grass at Panchsheel Marg near Ashoka Gas Station and he could have the same recovered. The disclosure statement made by Bagga was reduced to writing and pursuant to the said disclosure the dagger Ex. PW 3/B was recovered from inside Gulmohar park near Ashoka Gas Station. The dagger was sealed. On Chemical examination the dagger was found to be stained with human blood but the blood detected on the dagger was found to be too small for serological analysis. The dagger was also sent for the opinion of Dr. Femate. The doctor after examining the dagger gave the opinion that injuries Nos. 1 and 2 could be produced by the weapon shown to him.

12. The scene of crime was inspected by P.W. 32 and he took into possession the scooter bearing No. DHI 9986 from in front of shop No. E-9/3. A leather holster was seen lying near the scooter and this was also taken into possession. With the help of cotton blood was lifted from two spots - one in front of Mayur Tailors and the second from the verandah in between shops Nos. 9/3 and 10/1. On 9th October P.W. 32 took into his possession the saree of P.W. 9 stained with blood which she was alleged to be wearing at the time when she removed her injured brother to the hospital.

13. Gurdeep Bagga in his statement at the trial stated that the deceased Atam Prakash Bhandari was a fast friend of his and he knew P. W. 9 because she was the sister of Bhandari. He further stated that Bhandari was living separate from P.W. 9 and the relations of P.W. 9 with her brother Bhandari were strained and she hated him. Bagga further stated that he had been falsely implicated in the case because of his friendship with Bhandari. Bagga completely denied the prosecution case.

14. Amar Singh accused admitted that on 8th October 1980 he along with his son Pappi had gone to the shop of P.W. 9. He stated as follows :

"It is a false case. I am a registered consumer of Indane cooking gas with the firm of M/s. Mohanil Gas Agency Hauz Khas Market. The cooking gas in my house was finished on 5-10-1980. My son Ravinder Pal gave a telephonic message to Mohanil Gas Agency for supply for refilled cylinder. He rang up the gas agency on 5th, 6th, 7th, October 1980. We did not get the supply of refilled gas cylinder. On 8-10-1980 at about 5.15 p.m. I went to Hauz Khas market to purchase medicine from a chemist. There I thought of reminding the gas agency for supply of cooking gas to my house. I found my son Ravinder Pal already there. I talked to Mrs. Verma and asked her as to why refilled gas cylinder was not supplied to me at my house. I also told her that they were supplying gas to their friends and acquaintances on the day of order itself whereas people like me had to wait for days together. I asked her as to where Bhandari was. Mrs. Verma questioned me saying 'Tu Koun Hota Sikha Esi Baat Karne Wala'. I retorted 'Batmeez Tume Baat Karne Ki Tameez Nehin'. At this there continued exchange of hot words between me and Sudarshan Verma. In the meantime I heard a hue and cry from outside the shop 'Maar Diya Maar Diya'. Mrs. Sudarshan Verma ran outside. Sushil who was also sitting in the shop also walked out. After 2/3 minutes I also went out of the shop with my son. I saw that many people had gathered there. I and my son went to our house walking from the side of Mayur Tailors and Neel Kamal Halwai shop. I have been false implicated."

The rest of the prosecution case was denied by Amar Singh.

15. Ravinder Pal Singh made a statement similar to his father.

16. The accused did not produce any evidence in defense.

17. P.Ws. 9, 10, 12, 13 and 15 are the alleged eye-witnesses to the occurrence. These witnesses can be divided into there categories. P.W. 9 has wholly supported the prosecution case. P.Ws. 10 and 15 have not supported the prosecution case on all the material particulars. P.Ws. 12 and 13 have substantially supported the prosecution case but on a crucial point, namely, the identity of the assailant they have not supported the prosecution case.

18. Shri Rajinder Singh, Senior Advocate, for the appellant, assailed the testimony of P.W. 9 on the ground that P.W. 9 states that after inflicting the dagger blow while Bhandari was on the scooter, Bhandari had run towards the Navyug Tailor where the second blow was given and Bhandari fell down. But strangely no blood was recovered from that spot and that blood was only seen and picked up from in front of the shop of Mayur Tailor. According to Mr. Rajinder Singh this fact alone is sufficient to prove that P.W. 9 had not seen the occurrence. Mr. Rajinder Singh further contended that no blood was found on the scooter or from any spot near about the scooter and that falsifies the statement of P.W. 9 that Bhandari was given the first blow when he was still on the scooter. He further contended that P.W. 9 at the relevant time was in her cabin inside the shop and she was not in a position to see the occurrence from her seat inside the cabin. He further contended that medical report regarding the injuries on the person of P.W. 9 does not relate the injuries to the date and time of the occurrence. He further contended that P.W. 9 hated Bhandari and, therefore, the prosecution case that Bhandari worked with P.W. 9 at the shop and at the time of the occurrence he was going to the shop of P.W. 9 cannot be believed. Mr. Rajinder Singh in this regard referred to the letter marked 'A', said to have been written by P.W. 9 to the deceased Bhandari.

19. We have given our very careful thought to the contentions urged by Mr. Rajinder Singh and we are not impressed with any of his contentions.

20. The prosecution case admits of no doubt that on 8th October, 1980 at about 5.30 p.m. in front of the shop of P.W. 9 Bhandari was assaulted and seriously wounded. It further admits of no doubt that P.W. 9 had removed Bhandari to the Safdarjung hospital where he was admitted at 6.10 p.m. It also admits of no doubt that Bhandari succumbed to the injuries at 6.30 p.m. Ex. P.W. 17/A is the medico legal report in respect of the deceased Bhandari and it records that Bhandari accompanied by P.W. 9 was admitted in the hospital at 6.10 p.m.

21. We have carefully perused the testimony of P.W. 9 and we are of the view that she is a witness of truth and is wholly dependable. P.W. 32 Sub-Inspector Sube Singh recorded the statement Ex. PW 9/A of P.W. 9 at the hospital at about 6.30 p.m. The report Ex. PW 9/A along with the endorsement Ex. PW 32/A was dispatched to the police station at 6.50 p.m. The formal report was recorded at 7.10 p.m. The first report is fairly detailed and it contains all the important facts. P.W. 9 stated that Amar Singh. Sub-Inspector, his son Pappi, resident of G-7, Police Station. Hauz Khas, and Pinki resident of R-block, Hauz Khas market, who was wearing white Kurta and who is known to her from before had come to her stop. She further after narrating the facts leading to the occurrence stated that Pinki had given the dagger blows to her brother Bhandari. She has also stated that the occurrence was witnessed by Sushil Kumar and Kamal Anand.

22. The report Ex. PW 9/A was recorded within about one hour of the occurrence. There is hardly any time gap between the occurrence and the first report during which a twisted or thought out version of the occurrence could be given.

23. The first report substantially corroborates the version given by P.W. 9 in Court.

24. The fact that Bhandari was stabbed outside in front of the shop of P.W. 9 or near that spot is supported by all the eye-witnesses. P.W. 12 Sushil Kumar testified that on the relevant date he was working as in charge of show room at Mohinil Gas Service E-9/3. Hauz Khas and Bhandari was the Manager. He further deposed that on 8th October 1980 at about 5.15 or 5.30 p.m. he was in the shop. Mrs. Verma was also there. One Kamal Anand, a friend of Bhandari, was also in the shop. Pappi alias Ravinder Pal Singh came to the shop. He talked to Mrs. Sudarshan Verma about a gas cylinder. Within a few minutes Amar Singh accused also came to the Gas agency. Both Amar Singh and Pappi talked to Mrs. Verma about the cylinder. Mrs. Verma told them that she did not know anything about the gas cylinder. Pappi said that they had a talk with Bhandari and as to where Bhandari was. Mrs. Verma replied "Bhandari Kee Baat Bhandari Se Karna. Mere Se Kuon Kaha Rahe Hain". During these talks the tone was sharp. The witness further deposed that while the talk was going on a cry heard from outside. 'BHANDARI KO CHAKU MAAR DIYA', Mrs. Verma ran outside and he and Kamal Anand also came out. The witness further stated that he saw Mrs. Verma standing in the verandah holding Bhandari. The witness deposed that he did not see who stabbed Bhandari. P.W. 12 was declared hostile and was cross-examined by the Public Prosecutor. He was confronted with his statement before the police wherein he had stated that Pinki had stabbed Atam Prakash Bhandari. The witness denied to have made the said statement.

25. P.W. 13 gave evidence that he is employed in the Central Bank of India and that on 8th October 1980 at about 4.30 or 5 p.m. he had gone to the Gas Agency to meet Bhandari, that Mrs. Verma was in the shop but Bhandari was not in the shop, that he asked Mrs. Verma as to where Bhandari was and she told him that he had gone somewhere, that she asked him to sit and wait for him, that he sat inside the shop on the chair, that at about 5.15 p.m. a young boy (identified by the witness as Ravinder Pal) came to the shop and after a few minutes a Sikh gentleman (identified as Amar Singh) came to the shop. We would further extract a small para from the statement of P.W. 13 and it reads as under :

"These two accused talked something to each other. I could not here what they talked. After 2/3 minutes still another boy came there. He was a young boy. I cannot identify him. The Sikh gentleman (Amar Singh) asked Mrs. Verma as to why gas cylinder had not been sent. He also said that gas was being sent to acquaintances earlier than to others. Mrs. Verma retorted as to who he was to raise any question about it and that he could not talk in that manner. Amar Singh spoke 'Apko Tameez Nahin Baat Karne Ki'. Thus there was exchange of hot words. In the meantime the third young boy went outside. While I was still inside the shop I heard a noise from outside. I came out. Mrs. Verma and Sushil also came out. I noticed that Bhandari was sitting on a two-wheeler scooter and that third young boy who had gone outside the shop had stabbed him. That boy was near the scooter. Bhandari was on the scooter just in front of the shop of a tailor. The shop of that tailor was adjacent to the shop of Mrs. Sudarshan Verma. That young boy was holding Chaku in his hand. The stab had been given on the chest of Bhandari.

Q. Did anybody else do anything apart from that young boy to Bhandari ?

A. No. As soon as Bhandari got the knife blow, Bhandari ran towards the shop of tailor. The boy again stabbed Bhandari just outside the shop of that tailor. I do not remember exactly where this knife blow fell. I did not proceed forward to intervene and rescue Bhandari."

26. The witness was declared hostile and was cross-examined with regard to his statement made before the police. The witness denied to have stated before the police that Gurdeep Bagga alias Pinki had stabbed Bhandari. The witness to a question : "I suggest that the boy who had stabbed Atam Prakash Bhandari is the accused Gurdeep Bagga alias Pinki, now present in court" replied : "he is not the boy who had stabbed Bhandari".

27. From the above discussed evidence it is clear that Sub-Inspector Amar Singh, his son Ravinder Pal Singh alias Pappi and another young boy had gone to the shop of P.W. 9. There was a heated exchange of words between Amar Singh and others and P.W. 9. Soon thereafter Bhandari had come on a scooter and he was assaulted and stabbed with a dagger by the third young boy accompanying Amar Singh and Pappi. Bhandari had run towards the tailor's shop chased by the assailant who overtook him and gave another blow. Bhandari fell down in front of the shop of the tailor and the assailants ran away. The crucial question that arises is the identity of the assailant who had stabbed Bhandari. P.W. 9 in the first report had named Pinki, resident of R-block, Hauz Khas market as the assailant who had stabbed Bhandari. Gurdeep Bagga was identified as the man who had stabbed Bhandari. The address given of Pinki in the first report is resident of R-block, Hauz Khas. It is not disputed that Gurdeep Bagga resided at R-17, Hauz Khas, P.W. 9 has given evidence that Gurdeep Bagga alias Pinki was known to Bhandari and she also knew Gurdeep Bagga well. It is not disputed that Gurdeep Bagga was known to P.W. 9. We find no reason why P.W. 9 would falsely name Gurdeep Bagga as the assailant of her brother. Even P.W. 10 who turned hostile deposed that the name of the boy who had run away with the dagger is 'Baggi'. P.W. 10 on cross-examination by the Public Prosecutor deposed that he had in his statement before the police given the name of Gurdeep Bagga alias Pinki as the man who was holding the knife. The witness stated that he had come to know the name of Gurdeep Bagga from the people on the next day.

28. We have no hesitation in holding that P.Ws. 10, 12 and 13 have been won over and they have tried to favor the appellant.

29. Shri Rajinder Singh contended that P.W. 9 was sitting inside the cabin in the shop and she was not in a position to see the occurrence. He further contended that no blood was seen or found at the spot where the deceased had parked his scooter and where he is alleged to have been assaulted by the appellant and further no blood was seen in front of the shop of Navyug Tailors where it is alleged the second blow was given and the deceased had fallen. Shri Rajinder Singh contended that the plan Ex. PW 19/A shows that blood drops were seen only in front of the shop of Navyug Tailors. The above, according to Mr. Rajinder Singh, would show that the statement of P.W. 9 that the deceased was assaulted in front of her shop and thereafter he had run towards Navyug Tailors where he had fallen is not true and this would further prove that she had not witnessed the occurrence.

30. The spot mark 'A' in the plan indicates the spot where the deceased is alleged to have parked the scooter. Mark 'D' is the spot where the leather holster was recovered. Mark 'I' is the spot where blood drops were seen. Mark 'E' is the spot in front of Navyug Tailor where the deceased after receiving the second blow had fallen. Mark 'B' is the spot where P.W. 9, P.W. 12 and P.W. 13 saw the occurrence.

31. The plan Ex. PW 19/A was prepared on 2nd December 1980. We are constrained to observe that the plan Ex. PW 19/A does not correctly depict the scene of crime. Luckily, the scene of occurrence was photographed on the evening of 8th October and Exts. PWs. 14/A1 to A6 are the photographs of the scene of crime. Photograph Ex. PW 14/A2 clearly shows that the scooter was parked almost in front of the shop of P.W. 9. P.W. 9 testified that the scooter had stopped in front of her shop and that of Janak Gupta. (We may clarify that the shop of Janak Gupta is E-10/1 and it adjoins the shop of P.W. 9). The words used by P.W. 9 in her statement are "that the scooter had stopped at the point where her shop and the shop of Janak Gupta meet. The photograph Ex. PW 14/A2 supports this statement of P.W. 9. P.W. 9 further stated that she along with Sushil Kumar and Kamal Anand was sitting in the shop and that the spot where the scooter was parked was visible to her. P.W. 9 in the first report also had stated that she, Sushil Kumar and Kamal Anand were sitting in the shop. Her above statement finds corroboration from the evidence given by P.Ws. 12 and 13. P.W. 12 testified that when he heard the cries from outside "BHANDARI KO CHAKU MAAR DIYA" Mrs. Sudarshan Verma had run outside. P.W. 13 gave evidence that when the third boy went outside he, Mrs. Verma and Sushil had also come out and he noticed the third boy stabbing Bhandari while he was on the scooter.

32. From the photograph Ex. PW 14/A2 and the evidence given by P.Ws. 9, 12 and 13 it is established beyond doubt that P.W. 9 was sitting in the shop when Bhandari had come and parked the scooter just at the corner of the shops of P.W. 9 and E-10/1 and that P.W. 9 could have seen Bhandari coming from inside the shop. There is further unimpeachable evidence that when Bhandari was assaulted P.W. 9 had rushed outside. There can be no doubt about P.W. 9 having seen the occurrence.

33. P.W. 32 who had reached the spot soon after the occurrence stated that he noticed blood-stains in the verandah extending from the shop of Navyug Tailors to the shop of Mayur Tailors. P.W. 32 further deposed that he lifted blood from two spots from the verandah floor, one from near Mayur Tailors, and another from the spot between E-9/3 and E-10/1. (E-9/3 is the shop of P.W. 9 and E10/1 is the shop of Gupta Fancy Store).

34. P.W. 15 to a Court question stated that he had seen blood lying in front of the shop of Mayur Tailors and in front of the shop of Mohinil Gas Agency and in front of the portion adjoining the shops of Janak and Shiv. The witness deposed that his shop is adjoining to the shop of Shiv Raj dealing in stationery.

35. Exts. PW/14/A4 and PW 14/A5 are the photographs of the spots where blood was seen. Photograph Ex. PW 14/A4 shows a trail of blood in the verandah in front of the shops. The police officer, unfortunately, who took the photographs has not in the photographs indicated the shop number in front of which the trail of blood was seen. The testimony of P.W. 32 makes it clear that blood was seen in the verandah right from the shop of Navyug Tailors up to Mayur Tailors. The above statement finds support from the statement of P.W. 15 and the photographs. In the plan Ex. PW 19/A blood-stains are shown only at the spot mark 'I' which is in front of Mayur Tailors. It is clear that the plan Ex. PW 19/A is not in accord with the facts seen and found at the spot on 8th October, 1980. The photograph Ex. PW 14/A2 also is suggestive that the plan has not been correctly prepared. In the plan the scooter is shown to have been parked in front of shop E-10/1. This is not correct. The photograph Ex. PW 14/A2 clearly shows that the scooter, as stated by P.W. 9, was parked at the point where shop E-9/3 and E-10/1 meet. The plan is definitely misleading. The dagger holster was found lying by the side of the scooter. This piece of evidence proves that the dagger was taken out of the sheath just at the time when Bhandari had parked the scooter and he was stabbed while he was on the scooter or in the process of getting off the scooter.

36. Shri Rajinder Singh vehemently contended that the letter mark 'A' proves that P.W. 9 had hated her brother Bhandari and from the contents of the letter mark 'A' it would appear that P.W. 9 would never have kept Bhandari at her shop and Bhandari also would not have liked to work for P.W. 9 who hated him so much. We have gone through the contents of the letter mark 'A'. The letter at places is couched in such a language which we very much doubt if any sister howsoever she may have hated a brother would have liked to write. P.W. 9 denied to have written the said letter. She, however, declined to give specimens of her writings for comparison. Irrespective of the fact whether the letter mark 'A' was written or not by P.W. 9 we find clear and convincing evidence on the record that Bhandari was working at the shop of P.W. 9, P.Ws. 10, 12 and 13 have in clear words stated that Bhandari was working at the shop of P.W. 9. Amar Singh and Pappi accused also in their statements stated that on 5th, 6th and 7th October they had telephoned P.W. 9 for the cylinder and that two occasions the telephone was received by Bhandari.

37. We further find that the prosecution has examined P.W. 7 Dr. Subhash Chander Verma, P.W. 8 Chanan Dass and P.W. 11. Subhash Bhandari, P.W. 7 and P.W. 11 are the brothers of the deceased and P.W. 8 is the uncle (Masar) of the deceased. The aforesaid witnesses were not cross-examined at all with regard to the strained relations between P.W. 9 and the deceased. Beyond the letter mark 'A' there is no evidence at all that there was any bad blood or bad feelings between the sister and the brother. The letter mark 'A' has come from the possession of the appellant. We have grave doubts regarding the genuineness of the letter mark 'A'. But irrespective of the fact whether it is genuine or not we have no hesitation in finding that the deceased was working as Manager with P.W. 9.

38. According to P.W. 9 in the process of apprehending the assailant Pinki she had received a cut with the dagger on her left wrist and Pinki had given a blow to her with his leg and she had fallen down. On 10th October 1980 P.W. 9 was examined by Dr. Vinay Sabharwal at Safdarjung hospital and he found the following injuries on her body :

"1. Old bruises left wrist 1 1/2" no fresh bleeding;

2. Abrasions right arm."

The doctor gave the duration of the injuries about 40 hours before. The doctor further opined that the injuries were caused by a blunt weapon.

39. Shri Rajinder Singh on the basis of the medico legal report Ex. PW 28/A contended that the description of the injuries does not fit in with the version of P.W. 9. The duration of the injuries given in the medico legal report Ex. PW 28/A takes the time of the injuries to near about the time of the occurrence. We have no reason to doubt the truthfulness of the statement of P.W. 9 that she had received some injuries in the process of catching the assailant. We have earlier believed the prosecution case that P.W. 9 had seen the occurrence and she had run out of the shop to save her brother.

40. Another important piece of evidence is the dying declaration said to have been made by the deceased to the doctor at the time of the admission in the hospital. Ex. PW 17/A is the medico legal report in respect of the deceased and it is recorded therein that the patient gave the history that he was assaulted by Pinki. P.W. 17 Dr. (Mrs.) Matta in court testified that the above statement was made by the patient himself. She further deposed that she found the patient conscious and oriented and he knew about his surroundings. In cross-examination the witness stated that it is possible that some other person may have given the aforesaid information. Bhandari was admitted in the hospital at 6.10 p.m. and the aforesaid dying declaration must have been recorded near about that time. P.W. 17 testified that the patients who are in a condition like the one in which Atam Prakash Bhandari was are unable to speak but some can utter few words. She further deposed that it depended from patient to patient as to how much he is able to speak in such a condition. To a Court question "can any person in such a state speak full sentence or sentences" P.W. 17 replied : "it depends from patient to patient and in her view they cannot speak full sentences in such a condition." We have no reason to doubt P.W. 17 that it was the patient who had told her that he had been assaulted by Pinki.

41. The above does not help us in fixing the identity of the assailant. P.W. 9 also in the first report named Pinki as the assailant of her brother. The assailant named Pinki has been identified as the appellant Gurdeep Bagga and, as already observed, we have no hesitation in believing P.W. 9 that the nick name of the appellant is Pinki and it was the appellant who had given the dagger blows to the deceased Bhandari.

42. Another important piece of evidence connecting the appellant with the crime is that soon after the commission of the crime, the appellant had gone to the police station. defense Colony, and handed over a written document Ex. PW 26/J. The said document has been held to be inadmissible as it is hit by S. 25 of the Evidence Act.

43. Sub-Inspector Maha Singh (P.W. 27) testified that on 8th October, 1980 he was on duty at the Police Station, defense Colony, and that the S.H.O. defense Colony had come to him along with the accused Gurdeep Bagga and handed over to him the written statement Ex. PW 26/J consisting of two pages. The witness further deposed that he had made the entry No. 18 in the daily diary which is signed by Gurdeep Bagga. The witness further deposed that Gurdeep Bagga was handed over to Sub-Inspector Randhir Singh for interrogation.

44. P.W. 4 Sub-Inspector Randhir Singh testified that he arrested Gurdeep Bagga and on interrogation Gurdeep Bagga made a disclosure and pursuant to that disclosure a dagger was recovered from Panchsheel Park behind Ashoka Service Station. The dagger was sent to the Forensic Science Laboratory for examination and report. The report was that the dagger is stained with human blood but the quantity of blood was too small for serological examination. We find no reason to disbelieve the prosecution case that on 8th October, 1980 at about 7.40 p.m. Gurdeep Bagga had gone to the police station, defense Colony, and led to the recovery of the dagger. The above conduct of the appellant, in our view, strengthens the prosecution case and our conclusion that it was the appellant Gurdeep Bagga who has caused the murder.

45. For the reasons stated above, we find that the prosecution has succeeded in bringing home the guilt to the appellant beyond any reasonable doubt. We affirm the conviction and sentence of the appellant and dismiss the appeal.

46. We find that the crime has been committed in exceptional circumstances. The motive has not come out clearly on the record. But it can be found out from Ex. PW 26/J. The appellant had Burshane Cylinder and he wanted it to be exchanged with Indane gas cylinder. The appellant knew Bhandari. Bhandari promised to exchange the cylinder with Indane cylinder and he took away Burshane Cylinder with the promise to supply the Indane cylinder on the next day. In spite of repeated visits and requests of the appellant Bhandari did not supply the Indane gas cylinder. Bhandari one day asked the appellant to get the cylinder from the godown but on going to the godown the appellant was told that no cylinder is available. It seems on 8th October the appellant sought the help of Pappi and ASI Amar Singh but he was, again, not successful. The appellant in the circumstances described, lost his patience and his cool. The act is completely out of utter desperation while deprived of self control.

47. The appellant is a young man with good background. He has no criminal history. We strongly feel that this young life should not pass within the four walls of jail. We make a recommendation to the government to exercise its powers of reprieve and substantially remit or commute the sentence. We must make it clear that we have not taken into consideration Ex. PW 26/J in deciding the appeal. We have considered this document only for making the aforesaid recommendation to the government.

48. Order accordingly.