HAYATI USTA Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by Hayati Usta, aged 25, of Istanbul (Turkey) against his conviction and sentence of 10 years rigorous imprisonment under Section 304 of the Indian Penal Code. He was actually challaned and charged under Section 302 I.P.C. on the allegation that at about 10.00 p.m. on 22-8-1964 he had committed the murder of Nuri Genov on the Turkish ship "S. S. Demirhan" when she was anchoring in the Marmagoa Harbour near Vasco da Gama. The learned Sessions Judge, however, reached the conclusion that the charge under section 302 had not been substantiated by the evidence led by the prosecution and that the offence under Section 304 I.P.C. alone had been made out.

(2.) Femi Kaput P.W. 5 has furnished the prelude to the main occurrence which led Hayati to make fatal assault on Nuri. According to this witness, it was at about 10 p.m. on 22-8-1964 that on reaching the deck crew dining hall of the ship he saw some persons playing cards and Hayati sitting there. Nuri the deceased, entered the hall at that hour and went up to the accused and addressed the latter, "You say that I bother you. Tell me in what manner I bother you, satisfy me about it". Hayati, it looks, took offence at this insolence on the part of Nuri and retorted "Are you the boss over here - Hayati almost simultaneously sprang to his feet and soon the wordy quarrel entered the stage of fight when the two persons grappled with each other and used fist blows, some more persons entered the hall including Mehmet P. W. 4, Sakir and Yakub. These three persons interceded and disengaged Nuri from Hayati. Mehmet took Nuri out of the hall while the rest of the persons including Femi made Hayati sit down in the hall and began to calm down his ruffled feelings and frayed temper. Hayati, however, continued to seethe with rage and professed vengeance. He is said to have sworn that even if the ship's Captain were to fly away Nuri to Turkey he would follow him there and kill him, as also that if he failed to achieve that objective he would feel as shamefaced as he would if he were to copulate with none other than his own mother. A short while later, the accused went to his own cabin, which was located on the lower deck, on the score that he wanted to change his trousers. Femi and Mehmet followed him, apparently apprehending that he may not misbehave towards Nuri. On reaching his cabin, it is said, the accused changed his trousers, secured a knife hanging under the shutter of a shelf of his cupboard and made for Nuri's cabin which adjoined his own.

(3.) The facts of the actual occurrence resulting in Hayati's trial, according to the version of the prosecution, are that when Hayati left for Nuri's cabin armed with a knife, Femi and Mehmet rushed after him. The accused began kicking the door of the cabin of Nuri. P. W. 3 Bahri was a cabin-mate of the deceased and both happened to be inside the cabin at that hour. On hearing the sound of the kicks against the shutter of their cabin, the deceased Nuri and P. W. 3 Bahri got up and Nuri suspecting some foul play at the hand of Hayati braced himself up for thwarting Hayati's attempt to break open the shutter of the cabin. Actually what he did was, so runs the prosecution story, that he rested his shoulders against the shutter to counteract the force of the kicks given by Hayati from without. However, it is said, the lower panel, which was of plywood, of the shutter gave way when the accused administered the second kick and it fell back about two metres inside the cabin. It is at that stage that Femi secured the accused in his grasp and requested Mehmet to snatch the knife from the hands of the culprit. When Mehmet made an effort, in obedience to the call of Femi, the accused scared him away by threatening him with knife blows. The accused then directed his fury towards Femi in a bid to secure his release from his (Femi's) hold. Femi also exhibited nervousness and so released Hayati and himself stepped back. In that process he tumbled against a motor pump near the scene of occurrence and toppled down. Before Femi could secure his feet, Hayati managed to thrust a part of his body in the cabin through the gap made in the shutter. He then carried the knife (exhibit 2) and plunged the same into the left hemi-thorax of deceased Nuri. Femi has deposed that just at that moment he heard Bahri P. W. 3 yelling from within the cabin that Hayati had hit Nuri. Mehmet immediately took steps to pass on the said news to the officers of the ship.