Judgment

SIKRI, J.: In this case we gave special leave because in the petition filed by the appellant through jail it was alleged that his advocate was not heard in the case because he was busy in another case in another court and arrived too late to argue the murder reference and the appeal before the High Court. We had issued Notice to the Government to show cause why special leave should not be given but the Government did not inform us about the true state of affairs. Now, the learned Advocate for the State of U. P. has read to us a letter from the Govermnent Advocate who argued the appeal and murder reference before the High Court, stating that the facts as stated in the petition are not true. But in order to avoid delay resulting from an enquiry into this matter we decided to hear the case on merits. We had appointed a counsel amicus curiae and he was ready to assist us.

2. He has taken us through the evidence and he has urged certain submissions which we will presently notice. It has not been shown to us by the learned advocate that there is any case for disturbing the concurrent findings of the learned Sessions Judge and the High Court.

3. The prosecution story which has been accepted by the learned Sessions Judge and the High Court is as follows :

4. On 25th of December, 1967, at about mid-day, the appellant Bhagwan Swarup, and Babu Lal, who has been convicted by the High Court under Ss. 326/34/394 of the Indian Penal Code, were going on a bicycle on the service road on the bank of the canal minor in village Dabha. Dhan Singh deceased was going ahead on a new bicycle. When Dhan Singh reached the grove of Jagdish Prasad Sharma, Bhagwan Swarup and Babu Lal dragged Dhan Singh into the grove with the object of robbing him of his new bicycle. When Dhan Singh raised an alarm, Bhagwan Swarup whipped out a knife and stabbed Dhan Singh in the neck. On hearing the alarm raised by Dhan Singh, Ravindra Kumar (P. W. l), Roshan Lal (P.W. 2) and Gajendra Pal Singh, who were passing on the service road, rushed to the grove and saw the incident. On seeing these witnesses, the two accused picked up the old bicycle as well as the new bicycle of Dhan Singh and ran away-Bhagwan Swarup riding the old bicycle and Babu Lal the new bicycle. They were chased by the aforesaid three witnesses shouting. Kamlu (P W. 3) who was coming with a bundle of pulas on his head from the opposite side obstructed Bhagwan Swarup and Babu Lal by throwing his bundle in their way. Immediately Roshan Lal and others reached there and after beating them arrested both Bhagwan Swarup and Babu Lal. They were taken along with the bicycle into the grove where Dhan Singh was lying with injuries, bleeding profusely. The report was recorded at the police station at 2 p.m. the same day and the investigation was undertaken by K. C. Tyagi (P. W. 7), who immediately went to the scene of occurrence and seized the knife which was lying near the body of Dhan Singh deceased.

5. The prosecution story is supported by Ravindra Kumar (P. W. 1), Roshan Lal (P. W. 2) and Kamlu (P. W. 3), Dr. D. N. Tewari, Medical Officer, who conducted the post mortem examination on 26-12-1967 at 4.35 p.m. found one incised wound on the left side of the neck and one punctured wound below the aforesaid wound and one more punctured wound on the right side of the neck of the deceased. The last two wounds, according to him, may have been caused by one blow. It has been found that neither Ravindra Kumar nor Roshan Lal knew the two appellants before and they had no reason to falsely implicate the appellants. The High Court disbelieved the case of Bhagwan Swarup that there had been a marpit between Roshan Lal and Durjan Kadhera, a cousin of Bhagwan Swarup, and it is because of this fact Roshan Lal had falsely implicated Bhagwan Swarup. It is stated in the judgment of the High Court that the High Court sent for the records, if any, to ascertain if a report was made in connection with the marpit and also for the medic