Decided on May 03,1965


Cited Judgements :-



- (1.)THIS is an appeal by the Slate of U. P. against the judgment and order, dated 31st of August 1963 passed by Sri A P. Bhalnagur Additional Sessions Judge, Lucknow, acquitting the respondent of an offence under Section 302, I. P. C. , for the alleged murder of one Noor Mohammad alias Saktu, aged 55 years, on 30th August 1962 at 2. 30 P. M.
(2.)IT was alleged by the prosecution that both the respondent and the deceased lived in Bahdewan, Police Station Chowk, in the city of Lucknow, and they used to have monetary transactions between themselves. It is alleged that on 30th August 1962 at about 2. 30 P. M. the respondent went to the house of the deceased and demanded money that was due to him from the deceased. The deceased was not in a position to pay back the money then and that led to an altercation between the two which resulted in exchange of hot words and abuses between them. The deceased's brother Wafati P. W. 1 and Bhallu P. W. 2 nephew of the deceased, intervened in the quarrel and tried to assure the respondent that his money would be paid. It is, however, said that the respondent did not go and insisted upon the deceased the necessity of paying him the money then and there at which the deceased is supposed to have turned round and told the respondent that he could not pay the money and that he could do whatever he liked. The respondent is then supposed to have abused and taken out a knife from his pocket, opened it and gave a blow to the deceased below his left arm-pit. The deceased fell down and bled. Some witnesses are said to have arrived on the spot among whom were (03. 05. 1965 -ALLHC) Page 3 of 11 Nawab Ali, Mohammad Ali, Smt. Pachcho. Shafiul Hasan and Mushtaq Ali. The respondent is said to have run away with the blood-stained knife after the incident. The deceased's brother Wafati and his nephew Bhallu P. Ws, 1 and 2 then put the deceased in a rickshaw driven by Bhallu P. W. 2 himself and proceeded towards the Medical College to get him attended to. On the way they passed the police outpost of Khala Bazar where Wafati told a constable that the respondent had given a knife blow to his brother who was lying in the rickshaw. Accompanied by this constable he proceeded to the Medical College. On reaching there he was told by the doctor that Saktu was dead. Wafati thereupon entrusted the dead body to the constable and proceeded to the police station chowk to lodge the first information report Ex. Ka-1. The report was lodged at about 3. 30 P. M. The report was taken down by Jamuna Rai, Head Constable, P. W. 13. The Sub-Inspector In-charge of the Station was not at the police station at that time. He was informed about this murder by telephone at the police outpost Thakurganj. From there he reached the spot at 5. 45 P. M. and took down the statement of Wafati and after inspection of the locality prepared the site-plan Ex. Ka-12. He took bloodstained and plain earth from the place of the occurrence and had a recovery memo Ex Ka-9 prepared in respect thereof. He recorded the statements of the witnesses between 9 and 12 P. M. and searched for the accused at his house but neither the accused was found not anything incriminating recovered therefrom. He submitted the report for examination of the bloodstained cloth and blood-stained material by the Chemical Examiner, and on completion of the investigation submitted a charge-sheet against the accused. It may here be mentioned that the place of occurrence is about 200 paces from the police outpost Khala Bazar.
(3.)DR. Khare conducted the post mortem examination on the dead body of Saktu on 31st August 1962 at 2 P. M. He found the following injuries on his person;--
1. Incised and penetrating wound 5" x l" chest cavity deep (67/ 10" deep), 4-8/10" below the left axilla. The 8th rib was cut by injury No. 1. 2. Abrasion 6/10" X 4/10" on the left apex. In the opinion of the doctor Injury No. 1 was caused immediately before the death by a sharp-edged piercing weapon like knife and injury No. 2 was caused by friction. Death was caused, in the opinion or the doctor due to shock and haemorrhage resulting from injury to lung and aorta by a sharp penetrating weapon. The statement made by the doctor before the Committing Magistrate was tendered in evidence before the learned Additional Sessions Judge. The prosecution also tendered in evidence reports of the Chemical Examiner and Serologist. The Serologist reported that Langot and Pyjama of the deceased were stained with human blood. The origin of the blood stains could not, however, be determined by him because the material taken from the spot and the shirt of the deceased had been disintegrated. The respondent in his statement stated that the deceased Saktu was intoxicated and he tried to fell him down and he tried to release himself. P. Ws. Wafati and Bhallu had, however, he alleged, caught hold of him and the deceased was trying to strangle. He, therefore, thought that he would be killed. Meanwhile Wafati is stated by him to have taken out a knife and while trying to assault him his knife hit the deceased and that is how he died. The respondent is said to have freed himself and ran away. It would thus appear that the respondent did not admit having given the knife blow to the deceased much less pleaded that he had done so in his self defence. It seems, however, that at the stage of the argument before the learned Additional Sessions Judge the respondent's counsel pleaded an alternative case that even if it be held that the respondent struck the knife blow to Saktu he did it in the defence of his person and as such, he claimed protection of exception to Section 96.


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