AKHTAR Vs. STATE

JUDGEMENT

(1.) The appellant, Akhtar has been convicted by the learned Sessions Judge of Rampur under Section 302, I.P.C. and sentenced to imprisonment for life. He has appealed to this Court from jail, and, he is unrepresented here. However, Sri P. C. Srivastava, the learned Assistant Government Advocate, has placed the whole case before us very fairly and completely, and has contended that the conviction of the appellant under Section 302, I.P.C. is erroneous. The learned Assistant Government Advocate contends that this is a case in which the appellant is guilty of culpable homicide not amounting to murder inasmuch as the appellant acted under the stress of a grave and sudden provocation which deprived him of the power of self-control, so that he stabbed his own brother, Sabir, with a knife twice, and thereby caused his death. The submission made by the Assistant Government Advocate is not free from difficulties, and, therefore, we propose to examine these difficulties.

(2.) According to the prosecution case, the appellant is one of the five sons of Chanda (P.W. 8), and Chanda himself lodged the first information report at 8 P.M., on 22-11-1961, soon after the incident which took place about 6.30 P.M. on the same day. All the sons of Chanda except Shamshuddin, the youngest son, were married. Chhoti (P.W. 1), the wife of Sabir, deceased, is alleged to be a woman of ungovernable temper and of extremely quarrelsome nature. Both Chhoti (P.W. 1) and her husband Sabir, deceased, appear to have been addicted to the vicious habit of using foul and filthy language. It is also in evidence that, at the time of the occurrence, the wife and the children of Akhtar, the appellant, were not living with the appellant and had left for the house of Akhtar's father-in-law. Both Akhtar and Sabir, deceased, lived in what appears to have been practically one house, in their respective residential quarters which were separated only by a short wall. In the light of the fact that the two brothers were living side by side, practically overlooking into each other's quarters, and that Chhoti (P.W. 1), the wife of the deceased, has been described by prosecution witnesses as an extremely quarrelsome woman, who could not get along with anybody, the daily bickerings and squabbles between Chhoti and Sabir on one side and Akhtar and his wife and children on the other side, can be imagined.

(3.) It is in evidence that on 22-11-1961, the date of occurrence, in the evening, Akhtar was cooking his food alone in his part of the house, and that Chhoti (P.W. 1) was also nearly in Sabir's quarters. It is in evidence that Shamsuddin (P.W. 10) together with Chhunnu, the brother-in-law of Ramzani (P.W. 7), went to the house of Akhtar and saw him cooking his own food. And, thereupon, Chhunnu, the brother-in-law of Ramzani (P.W. 7), cracked a joke by asking Akhtar for the reason why he did not get his food cooked by Srimati Chhoti (P.W. 1). At this, Srimati Chhoti flared up, with the result that abuses were exchanged between her and Shamshuddin (P.W. 10). Apparently, Akhtar, the appellant, took no part in all this and controlled himself. A little later, Sabir, the deceased, who was older than Akhtar, Ramzani and Shamshuddin, came back from work to his house. Thereupon, his wife, Srimati Chhoti (P.W. 1), smarting under the effects of the encounter she had had with Shamshuddin and Chunnu, appears to have complained bitterly to Sabir against the conduct of his youngest brother, Shamshuddin, and set him up to go and reprimand and punish Shamshuddin. As a result of this instigation, Sabir, the deceased went to the house of his father, Chanda (P.W. 8), a few houses removed from there, and he started abusing everybody there. Sabir is also alleged to have threatened to tear Shamsuddin asunder by his legs, and Shamsuddin, who used to live with his father, is, reported to have hidden himself in the house due to fear. But, Chanda (P.W. 8) and Ramzani (P.W. 7) came out and tried to pacify Sabir and escorted him back to his house. When Chanda (P.W. 8) and Ramzani (P.W. 7) reached the quarters of Sabir, Chhoti (P.W. 1) received her father-in-law and brother-in-law with shower of abuses. It is probably at this point--and not before--that Akhtar intervened, as stated in the first information report. This intervention of Akhtar, who is younger than Sabir, appears at first to have taken the form of mere remonstrance, but it enraged Sabir afresh. It is in evidence that Sabir then used extremely filthy and highly unbecoming and objectionable language against his own father as well as against Akhtar, in the presence of the two other sons of Chanda, namely, Akhtar and Ramzani, and of Srimati Chhoti, the daughter-in-law of Chanda (P.W. 8). As to the nature of these abuses, it has been stated by Ramzani (P.W. 7) as follows :" Man ki bahan ki larki ki sabki gali di thi." Chanda (P.W. 8) has stated : "Sabir wa Musammat Choti ne mujhey wa Akhtar ko gandi galian ma bahan larki ki din." The two prosecution witnesses, Ramzani (P.W. 7) and Chanda (P.W. 8), not only give the nature of the highly objectionable and filthy abuses showered by Sabir upon his own father and upon Akhtar, the appellant, but they also stated that Sabir deceased brought out a lathi to strike the appellant Akhtar, and that Sabir and Akhtar began grappling with each other. No one appears to have noticed where or how Akhtar, appellant, got the knife with which he struck Sabir. Presumably, it was already there within the reach of Akhtar who had been cooking food there a little earlier. Ramzani (P.W. 7) stated that he only saw the two men grappling with each other in the dark. Chanda (P.W. 8) stated that Akhtar used some weapon, but he could not state what this weapon was.