RASHID Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 8-9-1981 passed by the Vth Additional Sessions Judge, Fatehpur convicting the appellant under Section 302 I. P. C. and sentencing him to undergo imprisonment for life.

(2.) THE prosecution story was that Razzak the deceased resident of Chhoti Bazariya Qaziyana Bindki, district Fatehpur came to Fatehpur city on 19-11-1980 to see Tajiya. He was staying with his mother-in- law, who was residing in the house of the informant Bhole (P. W. 6) at Fakirantola. Appellant Rashid is also resident of Fakirantola. On 20-11-1980 at 10. 30 a. m. Rashid was teasing a mad man in the lane of Fakirantola before the house of Bismillah. THE mad man started abusing him. Rashid twisted the hand of the mad man and slapped him two or four times. Amir Hasan (PW 2), Iftiqar Ahmad (PW 1), Kallan (PW 5) Bhole (PW 6) and Razzak (the deceased) asked Rashid not to do so. Razzak got that mad man freed from the hold of Rashid. Razzak told Rashid that such a treatment should not be given to a mad man. Rashid then replied Razzak that he was sympathizing too much with that mad man and he would make him cold. (THE words used by Rashid as indicated in the F. I. R. are that "rashid Ne Razak Se Yeh Kahte Hue Ki Tum Bare Hamdard Banker Aye Ho Tumhin Ko Thanda Kiye Deta Hoon" ). Rashid then took out a knife from his trouser and stabbed Razzak on the back. On receiving injury Razzak fell down unconscious on the ground. Rashid pulled out the blood stained knife and started to run away. He was apprehended by the persons present there. Bhole (PW 6) snatched the blood stained knife from the hand of Rashid. Razzak was brought to the Police Station Kotwali on a cot by Bhole (PW 6), Amir Hasan (PW 2), Kallan (PW 5), Iftikhar Ahmad (PW 1) and Rauf. THEy also brought Rashid to the Police Station Kotwali alongwith blood stained knife (Ext. 1), Bhole P. W. 6 dictated a report (Ext. Ka-5) at 11. 05 a. m. to the Head Constable Rajendra Bahadur Singh (PW 8 ). A case was registered under Section 307 I. P. C. in the G. D. in presence of S. I. Kamta Prasad Tewari (P. W. 7), who was entrusted with the investigation. He received copy of F. I. R. and G. D. after recording the statement of Bhole and proceeded to the place of occurrence where he took out blood stained soil as well as plain soil and prepared Memo (Ext. Ka-6 ). THEreafter, he prepared the site plan (Ext. Ka-7 ). 2. 1. Razzak was sent to Civil Hospital, Fatehpur where his injuries were examined by Dr. S. K. Singh (P. W. 3) at 11. 30 a. m. and since his condition was very bad, he was shifted to the surgical side where he died at 11. 43 a. m. 2. 2. Following injuries were found by the Doctor on the body of Razzak: "incised wound right side of back 3 cm. x 0-5 cm. x chest cavity deep at the level of angle of scapula 1 cm. lateral to midline in the inter scapular area, low pulse was not palpable and respiration was gasping the patient was conscious. Opinion.-THE injury had been caused by some sharp object. Duration fresh. Nature was kept under observation. THE patient was admitted on the surgical side. " 2. 3. Due to death of Razzak the case was converted under Section 302 IPC and an entry was made in the G. D. No. 22. Constable Indramani went to the place of occurrence with a copy of G. D. No. 22. Hospital memo and injury report and handed over to I. O. Sri Kamta Prasad Tewari. 2. 4. Sri Kamta Prasad Tewari went to Sadar Hospital alongwith constable Indramani where he prepared an Inquest Report (Ext. Ka- 8), sealed the dead body of Razzak and prepared Challan-nash (Ext. Ka-9), Photo-nash (Ext. Ka-10), letter for post-mortem (Ext. Ka-11) and letter to R. I. for post-mortem (Ext. Ka- 12 ). He also prepared the sample seal (Ext. Ka-13), letter to C. M. O. (Ext. Ka-14 ). He recorded the statements of witnesses Makbool, Kamal and Mukhtar Ahmad residents of Fakirantola and thereafter, returned back to the Police Station where he recorded the statement of accused Rashid and Head Constable Rajendra Bahadur. THEreafter, he recorded the statements of other witnesses and submitted charge- sheet (Ext. Ka-15 ). 2. 5. THE blood stained knife (Ext. 1) and blood stained clothes of accused Rashid were sealed in a bundle. THE I. O. sent them for chemical examination, the chemical examination report is (Ext. Ka-17 ). THE I. O. prepared the inquest report and completed other formalities and thereafter the dead-body was sent to mortuary for post-mortem. 2. 6. THE post-mortem on the dead-body was done on 21-11-1980 at 2 p. m. by Dr. V. K. Tripathi, Medical Officer, District Hospital Fatehpur (P. W. 4) who found following ante-mortem injuries on the body of the deceased: " (1) Stitched incised wound 1-1/4" x 1/2" x right chest cavity deep on the back right side 1/2" outer to the vertebral column in the 7th intercostals space. It was transverse. On internal examination right pleura of right lung at lower lobe were found cut. Clotted blood in chest was present. Heart was empty. THE death was about one day before post-mortem. THE cause of death was shock and hemorrhage as a result of the above ante- mortem injury. This injury has been caused by some sharp edged weapon such as Chhuri or any other sharp edged weapon. This injury was grievous and sufficient to cause death in ordinary course of nature as it had cut the pleura and right lung. "

(3.) THE Appellant in his statement under Section 313 Cr. P. C. admitted that Razzak was son-in-law of the sister of Bhole PW 6 and that his mother-in-law is window and lives with Bhole P. W. 6, that Razzak, had come to see Tajiya in Fatehpur city, but denied rest of the prosecution case. He stated that on 20-11- 1980 at about 10. 30 a. m. in Fakirantola Razzak was assaulting a mad man he intervened and got that mad man freed from the hold of Razzak who started abusing him and gave a knife blow which caused injury over his left palm, he then caught hold of his hand and after twisting the hand snatched the knife and threw it on the ground, Razzak then took "barna" and started beating him with it. THE mad man then lifted the knife from the ground and gave a knife blow on the back of Razzak who fell down he alongwith others took Razzak to Kotwali alongwith knife, S. I. and Head Constable sent Razzak to the hospital and detained him in Kotwali. Subsequently, Bhole the informant came there, and he was challaned by the police.