FAQUIRA SHIAMLAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant Faquira was convicted under Section 302, Indian Penal Code and sentenced to death by the Sessions Judge of Rampur. He had been tried with two co-accused, Shiamlal and Bhukan, who had been acquitted for offences punishable under Section 302 read with Section 34, Indian Penal Code, but, on a Government appeal having been filed against their acquittals, these acquittals were set aside and they were convicted and sentenced to life imprisonment. There are two appeals before us now:one by Faquira, and the other by Shiamlal. It appears that Bhukan, who, together with Shiamlal, had been convicted under Section 302/34, I. P. C., does not question the correctness of his conviction and sentence.

(2.) The prosecution case was that Bhukan, the convicted accused, who has not appealed and the murdered man Jamil Ahmed alias Chhanga were both Richkshaw pullers who used to keep their Rickshaw near the Chabutra of Mozzam Ali at Darakhat Kait, where two main roads, in Police Station Ganj in the city of Rampur crossed. One Smt. Uttamia, aged about 35 years, used to keep a Khoncha on the opposite side of the crossing facing the Chabutra. She used to prepare and sell potato chops to her customers. It appears that the deceased Chhanga was sitting near Khoncha while she was preparing a potato chop for him at about 7.45 p. m. on 23-4-72. It is in evidence that Bhukan brought Faquira and Shiamlal appellants in his Rickshaw from which they got down and the Rickshawala and its two occupants came and asked Smt. Uttamia to give some potato chops to them. She is said to have replied that she would serve them only after the deceased Chhanga had been served. Faquira and his two companions are said to have taken offence and to have insisted on having priority over the deceased Chhanga Thereupon, Chhanga is said to have objected on the ground that he was getting a chop prepared for himself and must have it first. He told the three men, who had left the Rickshaw behind, that they could only get theirs after he had been served. An exchange of hot words and abuses is said to have followed. We do not know whether it was hunger or something else behind the whole affairs or the nature of abuses hurled by the deceased that provoked the appellants so much. All we know is that the three accused became suddenly so infuriated that Bhukan and Shiamlal are said to have caught hold of Chhanga and dragged him to the Chabutra and told Faqira to attack him as Chhanga was "a great bully". Thereupon, Faqira is said to have brought out a knife from the folds of his pyjama and inflicted a succession of knife blows on Chhanga whilst Bhukan and Shiamlal held him down. It was alleged that Mozzam Ali, P. W. 1, and Farzand Ali, P. W. 2, and one Nabu Khan and Matloob Ahmed (not produced) who were sitting on the Chabutra, near which an electric bulb lit the scene, saw the whole incident, in addition to Smt. Uttamia, P. W. 4. An F. I. R. of the incident was lodged at about 8.40 p. m. on 23-4-72 at Police Station Ganj setting out the facts which have been duly supported by the three eye-witnesses, mentioned above, who stood cross-examination well.

(3.) Dr. Sabir Hussain, P. W. 3 who conducted the post mortem examination of the body of Chhanga, the victim who died almost immediately as a result of the injuries the proved following injuries on the person of the deceased: