Judgment

O. CHINNAPPA REDDY, J.: - Habib Usman, sole appellant, was acquitted by the learned Sessions Judge, Ahmedabad (Rural) of an offence under S. 302, Indian Penal Code. On appeal by the State of Gujarat the order of acquittal was set aside by the High Court and he was convicted under S. 302, Indian Penal Code and sentence to suffer imprisonment for life. He has filed this appeal.

2. The case against the accused was as follows :

3. There was a trivial quarrel between the accused and Hajishah, P.W. 8 over a soap box near the Koteswar tube well, where both of them had gone for a bath. The deceased Amminuddin Miyasaheb intervened and this angered the accused, who went away uttering a threat at the deceased.. On the day of occurrence, at about 8 A.M. The deceased had gone to Viramgam Railway Station to catch a train to go to Ahmedabad, as was his habit every day. Having put his bag in the compartment, he was standing on the platform when the accused attacked him with a knife. The blow was delivered on the left side of the chest. The deceased sat down clutching his chest with both hands and crying save me, save me, P. W. 3, Yusufbhai who had gone to the Railway Station to see his sister-in-law off, witnessed the occurrence, went near the deceased, made him get up, took him up to the gate, put him in a carriage and went with him to the hospital. The occurrence was also witnessed by P. Ws. 4, 5 and 6 among others.

4. P. W. 15, Dagadu, a constable attached to the Railway Police Station happened to be coming along the platform along with another Constable Kamarsingh when they saw a man coming with his hands on his chest, crying save me, save me. The injured person said I am stabbed by one person on my chest on the platform and he has run away. The injured pointed towards the main gate indicating that the assailant had run that way. Dagadu ran towards the main gate in order to apprehend the assailant but he was unable to find him. So he returned. By that time the injured person had been taken to the hospital. Dagdu and Kamarsingh went to the Police Station to inform the Sub-Inspector about the stabbing. An entry was made in the Station diary mentioning the information given by Dagadu.

5. At the hospital, in the meanwhile, P. W. 2, the Medical Officer examined the injured and sent an intimation to the Police Station. The Sub-Inspector of Police proceeded forthwith to the hospital and recorded the dying declaration of the injured person in the presence of the Medical Officer. Within half an hour after the statement was recorded the injured expired at 9.15 a.m. As already noticed the stabbing took place at about 8 a.m. After completing the investigation the Police filed a chargesheet against the accused for an offence under Section 302 Indian Penal Code.

6. In support of its case the prosecution relied upon the direct evidence of P.Ws. 3, 4, 5 and 6 and the dying declaration recorded by the Sub-Inspector at the Hospital. The plea of the accused was one of denial. The learned Sessions Judge rejected the evidence of the eye witnesses primarily on the ground that they did not refer to the presence of Dagadu and Dagadu did not mention that any other persons were present near the deceased, when he heard him crying save me, save me. The learned Sessions Judge thought that if Yusufbhai was present at the time of the occurrence and had taken the deceased towards the main gate, he would have certainly met Dagadu and Kamarsingh when they came near the deceased on hearing his cries save me, save me. The failure of Dagadu to mention the presence of Yusufbhai and the statement of Dagadu that he saw a man running towards the main gate with his hands on the chest disproved, according to the learned Sessions Judge, the presence of Yusufbhai as well as his story that immediately on being stabbed the deceased sat down and Yusufbhai made him get up and took him towards the main gate. The learned Sessions Judge discarded the evidence of the other eye witnesses