Decided on March 10,1954

STATE Respondents


- (1.) This judgment will dispose of two appeals filed on behalf of the convicts against their conviction and sentence under section 302 of the Indian Penal Code. Criminal Appeal No. 22-D of 1953 is a jail appeal by Mahabir alias Singh Ji and Criminal Appeal No. 23-D of 1953 has been filed through counsel on behalf of Bhagwan Das and Mahabir alias Singh Ji.
(2.) The case for the prosecution is that on the 7th April, 1953 at about 7-30 p.m. in the Quees Gardens Zahari deceased was murdered by Bhagwan Das and Mahabir, the former being the person who actually caused the injuries and the latter was catching hold of the deceased. On the 4th March, 1953 Mahabir appellant along with another person Babu Ram was arrested and proceedings were taken against him under Section 109, Criminal Procedure Code, and Zahari deceased, who was Chaukidar employed by the Delhi Municipal Committee, assisted the police in arresting Mahabir. It is stated that Zahari was one of the prosecution witnesses, but whether he actually appeared in F.I.R. No. is not quite clear. For this reason Mahabir had a grade Zahari. Mahabir was released on bail in the proceedings under section 109 of the Code of Criminal Procedure and he threatened Zahari that he would take revenge by killing him. Thereupon Zahri is stated to have made an application to the Kotwali Police Station against Mahabir stating that his life was in danger from Mahabir. The admissibility of this document was challanged in the Court below, but in view of what is to follow, we have not thought it necessary to go into this matter.
(3.) On the 7th April at about 7-30 p.m. Zahari who is a Chaukidar was sitting in the lane in front of the Municipal Town Hall, Delhi. Tulla Ram P.W.7 was selling tea outside the compound at a distance of a few yards from the place where Zahari was and certain other persons were sitting with them. One of them was Omi P.W.3 suddenly shouts of 'mar diya' 'mar diya' were heard which attracted the attention of the persons who were sitting towards where Zahari was and they noticed that Mahabir had caught hold of Zahari and Bhagwan Das was giving him injuries with a knife. The two assailants then ran away pursued by several persons including Omi. Bhagwan Das was arrested by Mahbir made good his escape and was arrested at Aligarh on 8th May, 1953.;

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