Decided on September 16,1960

STATE Respondents


N.M.MIABHOY - (1.)Appellant Alamkhan Umarkhan has been convicted for the offence under sec. 304 Part I Indian Penal Code and sentenced to rigorous imprisonment for four years by the learned Additional Sessions Judge Surat
(2.)The appellant was tried for the offence under section 337 Indian Penal Code on the allegation that on or about 26th of November 1958 at Olpad he committed the murder of the Hussein alias Kalu Mahomed by causing him injuries with knife with the intention of causing him injuries sufficient in the ordinary course of nature to cause death.
(3.)The prosecution evidence was that the deceased Kalu had four antimortem injuries. The corpse of the deceased was examined by Dr. Pesh Imam on 27-11-1958 at about 10-00 A. M. and the Doctor noticed the following injuries on the person of Kalu :
(1) Horizontal stab wound 1 x 1. 1/2 x wall deep in the epigastria region with signs of bleeding; (2) One superficial incised wound 1/2 x 1/4 x 1/4 on the right side of umbilicus about 3 away from the first wound; (3) A stab wound 1 x 1/2 x 3 deep on the right upper and outer side of the thigh; and (4) A stab wound in the right lumber region 1 x 1/2 x wall deep. In addition to this the Doctor also found abrasions on the right knee left knee and right elbow on the deceased. The prosecution case was that the first four injuries were caused on the deceased by the appellant Alamkhan and that the abrasions were the result of a fall which the deceased had received at the time when the incident took place. On the other hand the appellant Alamkhans contention was that one of the aforesaid four wounds was received by the deceased in the course of a struggle which ensued between him and the deceased under the circumstances presently to be mentioned and that he had caused one of the other three injuries on the deceased with a knife which the deceased intended to use against him and which he succeeded in depriving the deceased in the course of the struggle. Appellant did not state in specific terms one way or the other as to how the deceased received the other two injuries. The case which was set up by the appellant was that whatever injuries he had inflicted on the deceased on the day in question was in the exercise of the right of private defence. The prosecution relied upon one version regarding the circumstance under which the injuries were received by the deceased. This version was derived from the evidence given by four eye-witnesses to be presently mentioned. on the other hand the defence put forward another version as to the circumstances under which the injuries attempted by the defence had happened to be caused. The learned trial Judge. after a consideration of the prosecution evidence as whole and the defence version carne to the conclusion that the prosecution version was suffering from the infirmity of suppressio veri and that the true version as regards the inception of the incident was the one which was given by the appellant. On this view the learned Judge came to the conclusion that the appellant had the right of private defence and was acting in the exercise of that private defence on the date in question. But the learned Judge also came to the conclusion that the appellant had exceeded the power of private defence given to him by law and therefore appellant was not fully protected in respect of the acts which he had done on that day. In that view the learned judge came to the conclusion that the appellant was guilty of the offence under section 304 Part I. Indian Penal Code and convicted him accordingly.


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