KHAN Vs. STATE

JUDGEMENT

(1.) The appellants in these two appeals, Khan 'alias' Md. Rezak and Allauddin Khan 'alias' Allauddin Ferozuddin, were tried in the Sessions Division of this Court by Sen J. with the aid of special jury, the former on a charge under Section 302, Penal Code, and the latter on a charge under Section 302 read with Section 109. The Jury returned a unanimous verdict of guilty against both the accused persons and the learned Judge, accepting that verdict, sentenced the first appellant to death and the second appellant to transportation for life. They have appealed.

(2.) Originally, both the appellants sent separate petitions of appeal from jail. Since then, a further petition of appeal has been filed by the first appellant through a solicitor and at the hearing before us, he was represented by Mr. N. R. Das Gupta, appearing with a number of juniors. The appeal by Allauddin Khan remains an appeal from Jail and before us he has gone unrepresented.

(3.) The act charged against Md. Rezak was that on 19-4-1953, he caused the death of one Md. Safi by inflicting several wounds on his person with a dagger and the act charged against Allauddin Khan is that he instigated Md. Rezak to assault Md. Safi and that he aided him in the commission of the crime by holding Safi by his hands. The prosecution case is that on 19-4-1953, at, about 10 or 10.30 p. m. the deceased Safi was engaged in conversation with one Gaffur Mia, a little to the west of a betel shop kept by one Md. Omar at Terete Bazar Street. As Safi and Gaffur were talking, the two appellants came up to them from the east. Thereupon, Safi told the appellants that he was having some private conversation with Gaffur and they were intruding and he asked them to move away. The first appellant, however, said that he did not intend to do anything of the kind and challenged Safi to do what he could. Thereafter, Safi repeated his reguest a number of times, but the appellants paid no heed to him, Met with such defiance, Safi put his hand on the back of Rezak and started pushing him away. Rezak resisted and the two became engaged in a kind of scuffle, but Safi succeeded in pushing Rezak upto a Chinese club which was situated at some distance on the same side of the street. At that point of time, the second appellant, Allauddin, shouted out to Rezak to strike Safi down and what he did further was to grab Safi by the hands and to hold him fast. Thereafter, Rezak whipped out a knife and inflicted several injuries on the person of Safi who cried out that he had been stabbed. That cry attracted the attention of the keeper of the betel shop, Omar, who also shouted out that a person had been stabbed with a dagger. Omar rushed to the spot and then Allauddin loosed his grip on the hands of Safi who crouched down and Rezak then inflicted a final blow. Thereafter both ran away. Safi was able to stagger to a small hotel on the other side of the road and collapsed on a stool in front of the hotel. Omar hailed a passing rickshaw and put him into it and by the time he had done so, two acquaintances of Safi, named Salim and Asraf, came up and took charge of the wounded man. Salim got into the rickshaw itself and as the rickshaw started for the Bowbazar Police Station, Asraf ran alongside it. It is alleged that while being driven to the Police Station Safi made a statement to Salim as to how he had come by his injuries. At the Police Station the officers found the wounded man to be in a very serious condition and accordingly they rushed him to the hospital while they detained Salim for the purpose of obtaining a statement from him. Salim made a statement and an entry was made in the General Diary in accordance with what he said: Thereafter, some officers of the Police Station went to the hospital along with Salim and Asraf and found that preparations were being made to perform an operation on Md. Safi. Before, however, he was removed to the operation table, the Police Officers were able to obtain a statement from him in the course of which he gave an account of what had happened and how he had come by the serious injuries on his person. The medical aid rendered to Safi proved to be of no avail and he expired in the same night at 2-30 a.m. 3. After the occurrence, neither. Md. Rezak nor Allauddin could be found at their residences. Allauddin was arrested from a brothel at Bombay on 25-5-1953, and Md. Rezak surrendered before one Mr. Ram Chand Dewan, an - Inspector of Police attached to the Detective Department and working in the Security Control as the Officer-in-Charge of the Foreign Registration Section. Mr. Dewan, who had come to know of the Incident oh 20-4-1953, had previously gone to the registered address of Md. Rezak and found him absent. Since then, a proclamation had been issued by the police for the apprehension or surrender of "a Punjabi Muslim of the name of Khan and as he remembered that proclamation, he sent Md. Rezak to an Assistant Commissioner of Police. The Assistant Commissioner sent Rezak to the Bow-bazar Police Station and the officers of that Police Station arranged a test identification at which Md. Rezak was identified by Md. Omar and another person, named Abdul Gaffur. Thereafter, he too was placed on his trial. I should, add that a challan had already been submitted against Allauddin and commitment proceedings in respect of him had already taken place.