H.R. Khanna, J.
(1) Charan Singh aged 26 years, and Satish Chander,aged 18years, were tried in the Court of learned Additional Sessions Judge, Delhi, for an offence under section 302 read with section 34 of the Indian Penal Code, and were acquitted. The Delhi Administration has filed this appeal against the acquittal of Charan Singh.
(2) The prosecution case is that during the days of the present occurrence Public Witness Hans Raj was running a hotel under the name and style of New Vaishnu Grand Hotel on Hardhian Singh Road, Karol Bagh, Delhi. Sultan Singh deceased, aged 18 years, was working as a bearer in that hotel. On July 3, 1964 at about 9.15 p.m. the two accused came to the above hotel. Charan Singh accused then asked for6 chapatis. As a very large number of customers were taking their meals in the hotel at that time, Sultan Singh, deceased, told Charan Singh accused that the chapatis would be served first to those persons who were taking meals in the hotel and after that the chapatis would be supplied to Charan Singh. Charan Singh thereupon gave a push to Sultan Singh and also gave him a slap. Sultan Singh then caught hold of Charan Singh's hand and asked him as to who he was to ask for the chapatis in perference to others. Satish Chander accused then asked Charan Singh to tell Sultan Singh as to who they were. Charan Singh and Suitun Singh then grappled with each other. Sultan Singh was pushed back by Charan Singh accused and thereafter Charan Singh took out a knife from his Dhab and gave two or three blows to Sultan Singh deceased. Sultan Singh on receiving the knife injuries fell down on the chair which was lying at a distance of ten feet from the place where injuries were received by him. Satish Chander accused then ran away from the hotel through the back door. Charan Singh also escaped through the same door after picking up his turban which had, during the course of occurrence. fallen on the ground. Knife too was taken away by Charan Singh. The different persons taking their meals in the hold then left the place. The occurrence was witnessed amongst other-. by Baldev Raj, Prem Singh d Raibat Singh, employees of the hotel. Hans Raj proprietor of the hotel then took Sultan Slngh in his car to the Irwin Hospital.
(3) Asi Sardar Singh on the night of occurrence was going towards the police-station after investigating another case. When he was near the New Vaishnu Grand Hotel he learnt of the occurrence and immediately rushed to the hotel. When the Assistant Sub-Inspector reached there, he saw Hans Raj taking Sultan Singh deceased to the hospital in his car. Asi Sardar Singh met Baldev Raj (Public Witness ) and recorded his statement Exhibit Pb at 9.50 P.M. In that statement Baldev Raj gave details of the occurrence as given above. The names of the two culprits were nto given, but their description was given and it was stated that Baldev Raj was in a position to identify them. The report Exhibit Pb was sent to police-station Karol Bagh at a distance of about one furlong from the place of occurrence. A formal First Information Report was prepared at the police-station at 10.25 P.M. and a case under section 307 of the Indian Penal Code was registered.
(4) Sultan Singh, on arrival in the lrwin Hospital, was casually examined by Dr. S. S. Goyal in the Casualty Department. As his conditin was serious. Dr. Goyal sent Sultan Singh to the Male Surgical Emergency Ward, Sultan Singh, however, succumbed to his injuries in the lrwin Hospital at 12.30 A. M. the same night. The offence, under winch the case had been registered, was there after altered to that under section 302 of the Indian Penal Code.
(5) Inspector Mehar Singh, Station House Officer of Police station Karol Bagh, reached the place of occurrence at about 10.30 P.M. The Inspector deputed Si Shamsher Singh to arrest the culprits.
(6) Early on the following morning at about 4.30 A. M.,'it is stated, Si Shamsher Singh arrested both the accused from front of house No. 40 in Jhilmil Colony, Shadara while they were sleeping on a cot. Charan Singh had under his pillow turban Exhibit P, and the same was taken into possession. Charan Singh was found to have a cut on his right hand finger and the Sub-Inspector prepared an injury statement in respect of that. Charan Singh then disclosed that he had kept concealed a knife in the house of Chaman in Karol Bagh. The statement of Charan Singh was reduced to writing vide memo Exhibit P. H. Charan Singh then led the police party to the house of Chaman and gto recovered knife Exhibit P.I. Charan Singh was gto medically examined from Dr. Ramesh Chander at 2.40 P.M. on July 4, 1964. The doctor found an incised wound on the palmar aspect of the right middle finger terminal phalynx '1x1/10' skin deep.
(7) POST-MORTEM examination on body of Sultan Singh deceased was performed by Dr. Bishnu Kurnar at 3.50 P. M. on July 4. 1964. Besides an abrasion and a surgical wound on the right leg, the doctor found the following two injuries on the body of the deceased :--
3.Incised punctured wound, oblique 3.5x1.3 cm. on the front of chest just to the right of mid-line 8.5 cm. below suprasternal notch at the level of fourth rib. This wound was giong deep upwards and out wards.
4.Incised punctured wound, 1.8x80. cm. just to the right of mid-line in the right renal angle below right twelfth rib in the back going inside being directed upwards.
(8) On opening the chest it was found that injury No. 3 had resulted in cutting the medical end of the fourth rib. The injury was giong inwards and upwards to the upper lobe of right lung in which it had made a wound. Right lung was found to have collapsed and bathing completely in blood. Injury No. 4 showed a pin-point injury on the lower and back part of the inner side of the lung. Death was due to shock and haemorrahage resulting from injury to the lung which had been caused by a sharp penetrating weapon. The injuries could be caused by knife Exhibit P. 1.
(9) An application was made by Inspector Mehar Singh on July 6, 1964 to Shri R. C. Gupta, Sub Divisionsl Magistrate for conducting the identification parade of the two accused. Shri Gupta thereupon fixed July 8, 1964 for holding the identification parade. On July 8, 1964 Shri Gupta went to the Central Jail, Tehar, and the two accused were produced before him. The two accused then expressed their unwillingness to participate in identification parade.
(10) At the trial Baldev Raj (Public Witness 2), Prem Singh (Public Witness 5) and Raibat Singh (Public Witness 6) gave ocular evidence about the occurrence and supported the prosecution case.
(11) The two accused in their statements denied the prosecution allegations and stated that they had been falsely involved in this case. According to Charan Singh accused, he did nto cause any injury to the deceased and did nto know as to how he died. As regards his arrest, Charan Singh stated that he was arrested by the police from his own house at Shahdara on the morning of July 4, 1964. Charan Singh denied having gto recovered knife Exhibit P.I. As regards the injury on his right hand, Charan Singh stated that he was a carpenter and sustained the same from his implement while at work. About his refusal to participate in the identification parade, Charan Singh stated that after his arrest he was taken with his face unmuffled to the hotel where the prosecution witnesses were present. The employees of the hotel were also slated to have otherwise known Charan Singh because he used to take his meals there. Charan Singh added that he had been implicated in this case on mere suspicion. No evidence was produced in defense.
(12) The learned Additional Sessions Judge found that the evidence of the eye-witnesses was nto reliable. He was also of the view that at the time of the occurrence they were working at a place from which they could nto have seen the assault on the deceased. He also found the evidence about the recovery of the knife in pursuance of the statement of Charan Singh to be nto convincing. Reference was also made to the fact that Si Shmsher Singh in search of the culprits went to the houses of some other had characters. This clearly meant, according to the Additional Sessions Judge, that the police was suspecting several persons and later on arrested the accused in the present case on suspicion.
(13) There can be no manner of doubt that Sultan Singh deceased died as a result of stab injuries received by him. The evidence of Dr. Bishnu Kumar shows that the deceased had two incised punctured wounds which resulted in injury to his lung and thus caused his death. According to the prosecution case, the injuries to the deceased were caused by Charan Singh accused and for this purpose the prosection has relied on the evidence of the three witnesses Baldev Raj (Public Witness 2), Prem Singh (Public Witness 5) and Raibat Singh (PW6). The trial Court was of the view that the eye-wit nesses at the time of occurrence were present at a place from which they could nto have seen the occurrence. Question consequently arises whether the view of the trial Court in this respect is erroneous. In this connection we find that Baldev Raj (Public Witness ) was on the the day of occurrence working on the Tandoor of the hotel for preparing Tandoori chapatis. Preni Singh was employed for preparing tawa chapalis, while Raibat Singh was employed as a vegetable cook. The evidence of Baldev Raj (Public Witness ) shows that at that time of the occurrence he kept silting at his seat and so did Prem Singh and Raibat Singh (Public Witness s). The tawa chapafix, according to Prem Singh (Public Witness ) were prepared by him at a distance of about 2 or 3 feet from the place of working of Baldev Raj (Public Witness ). It is also clear from the evidence of the above-mentioned three witnesses that at the time of occurrence Baldev Raj was taking out chdpalis from the Tandoor, Raibat Singh was frying Dal and putting vegetables in the dishes, while Prem Singh was preparing chapatis on the tawa. Baldev Raj (Public Witness ) has deposed in his crossexamination that there are four rooms in the hotel. One room is used as a kitchen, second room is the rcom of the manager but it has been converted into a dining-room. and the remaini two rooms are dining-rooms. Sultan Singh deceased, according to the prosecution case, was stabbed in the hall used as dining-room. As Baldev Raj, Prem Singh and Raibat Singh were in the kitchen at the time of the occurrence and the deceased was assaulted in the main dining-hall. it is nto clear as to how they could witness the actual occurrence. According to plan Exhibit P. F., which was prepared by Gurmukh Singh draftsman (Public Witness 9), as well as the rough site plan Exhibit P. S., which 'as prepared by Inspector Mehar Singh (Public Witness 18), the deceased was assaulted at point No. 3 on those plans. Points Nos. 4 and 5 are mentioned to be the places where Baldev Raj and Prem Singh (Public Witness s) were present at the time of occurrence. Point No. 4 is near the Tandoor while point No.5 is near the tawa. Between the points Nos. 4 and 5 on one side and point No. 3 on the other, a line has been drawn which indicates an intervening partiton wall. The fact that the kitchen is stated by Baldev Raj (Public Witness ) to be situated in a room. also tends to show that the above line represents a wall because a room necessarily postulates a place with walls. In view of the existence of the wall, it has net been explained as to how the witnesses in the kitchen could see the actual assault on the deceased. Baldev Raj, Prem Singh and Raibat Singh (Public Witness s) no doubt have deposed about their having seen the assault on the deceased, no attempt, however, was made at the trial to show as to how the persons present near the Tandoor and the tawa could be in a position to see the assault on the deceased at point No. 3 in the dining-hall. No question to clarify this matter was asked either by the Public prosecutor or by the learned Additional Sessions Judge. Had this matter been gto elucidated, a more clear picture would have come before the Court and the lacuna in the record might perhaps have been set right. We ourselves at one stage thought of making a local inspection to ascertain the correct position but we were informed by both the learned counsel that there had since then been structural alterations in the place where the hotel in question was being run. The omission of the learned trial judge to get the matter clarified by putting one or two questions to either the draftsman or the investigating officer or any of the alleged eyewitnesses, in our opinion, was rather unfortunate. Many of the cases coming up before Courts of law involve human problems and though trial Judges should nto align themselves with either party to the case, it is essential that they take proper interest in the case and do nto allow obscurities to creep into the record. It hardly needs to be emphasised that unless the obscurities are eliminated and the matters clarified there connto be due adjudication of the points of controversy and proper dispensation of justice.
(14) Prem Singh (Public Witness ) in the couse of his cross-examination was confronted with his statement made before the Committing Magistrate. His statement in this respect reads as under:-
STABBINGtook place in the main hall, where the cus- it. Wneant reache main hall, the accused were night have stated in the Court of the Committing to that when both the accused left the hall and there rbance there, I came to the spto from the 'Tawa'. ted with portion B to Bin the statement of the witness made before the Committing Magistrate, where it is so recorded). It is incorrect to suggest that it was after my arrival in the hall after the accused had left that I could know the whole incident and the details as to how the accused Charan Singh had demanded the chapatis and how the occurrence took place. I did nto state as such before the Committing Magistrate. (Confronted with portion C to C in the statement of the witness in English and portion A to A in the statement of the witness in vernacular made in that Court, where it is so recorded).'
(15) The learned Additional Sessions Judge, in view of the different circumstances of the case, came to the conclusion that the alleged eye-witnesses, Baldev Raj, Prem Singh and Raibat Singh, could nto see the incident from within the kitchen which was enclosed with walls. After having been taken through the material on record we are of the poinion that the view taken by the learned Additional Sessions Judge in this respect was nto unreasonable.
(16) So far as the alleged recovery of knife Exhibit P. 1 at the instance of Charan Singh accused is concerned, it may be stated no blood was found on the knife. As such, the prosecution cannto derive much advantage from the recovery of the knife. As regards the injury on his right hand, the version of Charan Singh is that he sustained the same while working at his implements. Dr. Ramesh Chander, who examined the above injury of Charan Singh, has stated in his cross-examination that the said injury was of a superficial character and could be caused to a carpenter while working with his implements.
(17) It is in the evidence of Baldev Raj (Public Witness ) that about 80 to 90 persons were taking their meals in the dining-room at the time when Sultan Singh deceased was stabbed. A good many of them must have witnessed the actual occurrence and it is to be regretted that neither any one intervened to rescue the decased nor any one of the persons taking meals has come forward to make statement about the occurrence. This apathy to help in the administration of justice might be due to a variety of causes, the fact all the same remains that due to this attitude the culprit, whosoever he was, has nto been brought to book.
(18) After giving the matter our earnest consideration, we find no sufficient ground to interfere with the order of acquittal made by the Court below. The appeal consequently fails and is dismissed.