HAFIZULLAH Vs. STATE

JUDGEMENT

(1.) The appellant Hafiz Ullah son of Manzoor Khan, aged twenty-two years, a resident of village Shahjhahanpur, within police circle Kithore, in district Meerut, has been convicted Under Section 302, I. P. C. for the murder of one Abdul Rahim on the 26th of January, 1956, and also under Section 307, I.P.C. for causing injuries on the person of one Rafiq with knife with such intent that if death had been caused he would have been guilty of the offence of murder. He has been sentenced to death under Section 302, I.P.C. and to seven years' rigorous imprisonment under Section 307, I.P.C. He has appealed against his conviction and sentence. There is also before us the usual reference for the confirmation of the death sentence.

(2.) The prosecution story lay within a very narrow compass. It was said that Ilhamullah Khan P.W. 2 had a garden in village Shahjahanpur where he had a nursery of plants. On the morning of the 26th of January, 1956, Ilhamullah Khan learnt that about eighty-five apricot plants had been removed and stolen from the nursery on the preceding night. He also learnt that Hafiz Ullah Khan had been seen in the garden on the previous night at about 10 p.m. He called Hafiz Ullah and his father and complained to them about the theft. It is said that Hafiz Ullah's father rebuked him in very strong words and asked Hafiz Ullah to leave his house. It is further said that thereafter, at about 9 a.m., Hafiz Ullah made his appearance in the garden equipped with a knife and there he made a concerted attack on Abdul Rahim who had purchased the papaya crop of the grove and was keeping watch over the same in the garden, and he also made a concerted attack on Rafiq who came to the rescue of Abdul Rahim. It was contended that it was Abdul Rahim and Khuda Baksh the watchmen of the grove who had given the information to Ilhamullah Khan, and had confirmed it in the presence of the father of the accused, that they had seen the accused in the garden on that night. At the time of the attack Ilhamullah Khan, it is said, was supervising the work of taking out manure from a manure-pit in one portion of the garden and Patch Khan P.W. 4 arid Zarafat Ullah P.W. 5 were working there as labourers. Khuda Baksh P.W. 6 was said to have been working at another place in the garden. All these four persons saw Hafiz Ullah accused stabbing Abdul Rahim, and subsequently stabbing Rafiq when Rafiq came to the aid and assistance of Abdul Rahim.

(3.) A written report of the occurrence was sent by Ilhamullah Khan, which was filed at police station, Kithore on the same morning at 9-30 a.m., the police station having been at a distance of about one mile from the place of occurrence. The report was taken down as the report of an offence punishable under Section 307, I.P.O. Sub-Inspector Anand Swarup (P.W. 16), the station officer of police station, Kithore, was present at file time of the making of the report. He started for the scene of occurrence, reaching there at about 10 a.m. It is said that when he was proceeding there he met Hafiz Ullah, the accused, at the gates of the Thana and he interrogated him and took off his jersey from his person in the presence of Ram Swarup and Dal Chand. The jersey was said to have been blood-stained and a recovery memo. Ex. P-7 was prepared. Anand Swarup interrogated Ilhamullah Khan. He inspected the place of occurrence and prepared the site-plan. He took blood stained earth from the place of occurrence and sealed it up. After interrogating other witnesses, he returned back to the Tharia at 1-10 p.m.