Shamsher Bahadur, J.
1. Kishna has appealed from his conviction under Section 302, Indian Penal Code, and the sentence of death recorded by the learned Sessions Judge, Ambala, on 29th of September 1966. The matter is also before us for confirmation of the death sentence.
2. Kishna, who is about 30, according to the prosecution, inflicted a stab injury on Sham Lal, a young lad of 19, resulting in his death a few hours after midnight in the early morning of 12th of June 1964, in the house of Jhandu Ram Balmiki in Rampura Colony, a suburb of Yamuna Nagar Town. The deceased is a son of Jhandu Ram whose daughter Shimla was married to the appellant about 8 or 9 years ago. Shimla resided with the appellant for only a few months and had to be Drought back by her parents because of his being a 'professional thief and a vagabond'. Later, Shimla was married to Banwari son of Manglu in a village in Saharanpur district. Kishna naturally felt aggrieved and wreaked his vengeance by abducting Kamla, sister of Shimla, aged 9 or 10 years. This affront did not go unpunished and Kishna appellant was sentenced to a term of one year rigorous imprisonment and a fine by the order of the Magistrate passed on 20th of Tune 1963. This sentence passed on the appellant under Section 363, Indian Penal Code, was due to expire after allowing remission on 11th of June 1964. It is not a matter of dispute that Kishna appellant was released from the Central Jail, Ambala, on the forenoon of 11th of June 1964.
2. It seems that the appellant was still harbouring resentment against the family of his wife Shimla who had been taken away from him by her parents. After midnight of 12th of June 1964, at about 1-30 a.m., a little more than 12 hours after his release from jail, he came to the house of Jhandu Ram in Rampura Colony of Yamuna Nagar Town. Jhandu Ram and his young son Sham Lal were sleeping on the same cot in front of their house, while Gaindi, wife of Jhandu Ram, was sleeping on another cot nearby. Kishna thrust a chhuri in the abdomen of Sham Lal who gave a shriek. This aroused Jhandu Ram. The appellant immediately took out the knife from the abdomen of Sham Lal and blood was gushing out and actually fell on the clothes of Jhandu Ram. An alarm was raised but Kishna also threatened to kill Jhandu Ram. A lantern was burning as on account of some abdominal trouble Gaindi had to go to the latrine frequently that night. Gaindi was also aroused and she saw the appellant as well. The alarm of Jhandu Ram brought the neighbours Paras Ram and Hari Ram to the scene of occurrence. It may be mentioned that Kishna appellant, after giving the fatal blow to Sham Lal, ran in the direction of the houses of Paras Ram and Hari Ram Jhandu Ram found that his son had been killed and thereafter he, Paras Ram and Hari Ram tried to pursue Kishna but he disappeared in the jungle, which is at a distance of a few feet from the Rampura Colony. The appellant was not traced. According to Jhandu Ram, he had no difficulty in identifying Kishna by the light of lantern which was burning. Kishna was seen with the chhuri which he dropped on the spot.
3. The first information report was lodged by Jhandu Ram at Yamuna Nagar Police Station, which is at a distance of one mile from the scene of occurrence, without any delay. Jaswant Singh, Station House Officer, who recorded the report at 2-30 a. m. reached the house of Jhandu Ram at 3-0 a.m. where the dead body of Sham Lal was lying. The inquest report, Exhibit P. H. was prepared and it was noted therein that at the place marked No. 3 or a bamboo the lantern was found burning. This lantern was taken into possession, vide memo, of recovery Exhibit P. G., in presence of Munshi Ram and Chiranji Lal, both residents of Rampura Colony. Sham Lal's dead body was sent for post-mortem to the doctor before whom it was identified by Jhandu Ram. Dr. Bhandari found an incised stab wound l'x 3/8' deep in the abdominal cavity and cutting abdominal aorta. Death, in the opinion of the doctor must have taken place a few minutes after the infliction of the injury. The wound could have been caused by a weapon like the chhuri Exhibit P. 1, which was also taken into possession by the investigating officer. The gadda on the cot was taken into possession and was found to be bloodstained. The shirt and dhoti of Jhandu Ram which were found to be bloodstained were also taken into possession as also the bloodstained earth from near the scene of occurrence.
4. The appellant was arrested as late as 14th of May 1966, by Gurbux Singh,sH. O. Pehowa, from Jharouli Khurd in connection with an Excise case and it was later when the message was sent to Police Station Yamuna Nagar that he came to know that Kishna was wanted in a murder case in which he was a proclaimed offender.
5. The case for the prosecution has been set out in the statements of Jhandu Ram, P. W. 5 and Gaindi, P. W. 6. Gaindi has explained why the lantern was kept burning in me chhappar that night and Jhandu Ram has stated that he was able to identify Kishna by this light on that night which was otherwise dark. Kishna had stayed at the spot hardly a minute after stabbing Sham Lal and being a young man he was able to slip in the nearby forest. There is nothing in the cross-examination of these witnesses which can denigrate even by an iota the principal facets of the prosecution story. Paras Ram, P. W. 7 and Hari Ram, P. W. 8, who are immediate neighbours and are natural witnesses, were attracted by the cries of 'mar deya; pakro, Kishna bhag gava mar kar'. It was in the direction of their Houses that the appellant was running towards the jungle and in spite of their efforts, the appellant managed to flee. There is nothing unnatural in it as the night was dark and the witnesses were taken unawares by the suddenness of the assault. Both of them saw Sham Lal's gushing wound and heard the narration of Jhandu Ram. It is not possible to accede to the suggestion very strenuously urged by Mr. K.R. Mahajan, the learned counsel for the appellant, that the assailant could not be identified and the appellant was named because of previous enmity. It is to be observed that Jhandu Ram could not have known at that time, that the appellant was to be released that day.
6. In his statement made under Section 342 of the Code of Criminal Procedure, the appellant denied the prosecution story and affirmed his innocence. He attributed the case against him to enmity. After his statement had been recorded, the appellant produced Sardari Lal as defence witness. According to his evidence one Makhan Lal of Jharouli Khurd was also released from Ambala Central Jail on 11th of Tune 1964, and he threw a party which Sardari Lal attended. In that party, according to Sardari Lal, the appellant was also present. The party lasted till 11 to 12 in the night. Jharauli Khurd is at a distance of 24 miles from Ambala and it is argued that the appellant could not have been present both at the party and the scene of occurrence three hours later. Now, Sardari Lal had never talked to any one about this matter and no indication was given about this line of defence by the appellant. The prosecution evidence which has otherwise not been challenged cannot be disbelieved and the defence version which was unfolded for the first time in the evidence of Sardari Lal, D.W.1 does not appear to be plausible or convincing.
7. The appellant was absconding for a long time and this is a circumstance which has been taken into consideration by the learned Sessions Judge. This matter, however, was not put to the accused when his statement under Section 342 was recorded and cannot, therefore, be used as a circumstance against him. It has been ruled by their Lordships of the Supreme Court in Tara Singh v. The State. AIR 1951 SC 441, that an accused must be questioned separately about each material circumstance which is intended to be used against him, and the object of Section 342 of the Code of Criminal Procedure is to afford him a fair and proper opportunity of explaining circumstances which appear against him. Though this omission is regrettable, it cannot be said that it has resulted in material prejudice. It was held in a subsequent decision of the Supreme Court in Bejoy Chand Patra v. State of West Bengal. AIR 1952 SC 105. that
'it is not sufficient for 'the accused merely to show that he has not been fully examined as required by Section 342 but he must also show that Much examination has materially prejudiced him.'
Even if we leave out the circumstance of the appellant having absconded for a long time, there is sufficient and dependable evidence on the record to sustain the conviction. The appellant who could have been identified with the aid of the light of lantern as also by the voice of his threat by Jhandu Ram and Gaindi was named as the assailant at the earliest possible moment. What is more and this is significant, the neighbours Paras Ram and Hari Ram had no animus against the appellant and no conceivable reason for false implication has shown to exist. Besides, the recoveries of the lantern, the crime weapon (chhuri), bloodstained earth and clothes of both the deceased and Jhandu Ram lend support to the ocular evidence which has remained unchallenged. We have, therefore, no hesitation in upholding the conviction of the appellant.
8. As the murder was cold-blooded and calculated and the object of vengeance in the person of Sham Lal was so callously chosen, we see no reason to exercise clemency by imposing the lesser sentence though this aspect has been presed very vigorously before us by Mr. Mahajan. We would, accordingly confirm the death sentence awarded to the appellant.
A.N. Grover, J.
9. I agree.