ABDUL AZIZ ALIAS ZALIM KHAN Vs. EMPEROR

JUDGEMENT

(1.) Abdul Aziz alias Zalim Khan has been sentenced by the Sessions Judge of Muzafiarpur to death for the murder of Ganpat Mahto and his son Ramkishun. The matter has come to us on a reference under Section 374 of the Code of Criminal Procedure for confirmation of the death sentence and also on a jail appeal by the condemned man. The reference and the appeal have been heard together.

(2.) Ganpat Mahto was the karpardaz of a co-villager Musammat Chaheti P.W. No. 12 an old widow of 70 or 75 and had been looking after her cultivation and other affairs for 30 years or so. The appellant Zalim comes from Parsauni, a village 4 to 6 koses away from Chaheti's village, Ramnagra, and is somewhat distantly related to her, being the father-in-law of a daughter of the brother-in-law of her brother Himmat Khan P.W. No. 6. About the middle of last year he gave out that he had his nikah performed with Chaheti. He is himself about 40 and Chaheti, as I have already said is over 70, but the disparity in age is by no means conclusive against the alleged nikah. Chaheti and Himmat, however, emphatically deny the marriage, and no witness was called on behalf of the defence to prove the alleged marriage or any other matter. It appears that Zalim used to come to Ramnagra and visit Chaheti for 3 or 4 months before the occurrence which is dated August 31 last. He also tried to induce Chaheti to execute a will in his favour but Chaheti refused to do so under the advice of her karpardaz Ganpat, notwithstanding the fact that she was not altogether satisfied with Ganpat and was apparently persuaded by Zalim to believe that during Ganpat's management of her affairs she had been cheated out of some properties. On the morning of August 31 last Zalim visited Chaheti. Ganpat came there, and told him to go away from the house. Subhnarayan Kurmi, the village chowkidar, P.W. No. 1, and Kirtoolal Raut P.W. 8, a villager apparently charged with, the duty of realizing the chaukidari tax happened to come there and saw the altercation that was going on between Ganpat and Zalim,. Like Chaheti, they say that Ganpat gave Zalim a push and wanted to turn him out. At about sunset the same day Muradan Mian P.W. No. 15 was fishing in a tank in the village when Zalim went up to him and asked him to go and tell Ganpat that he was wanted by Zalim at the house of Chaheti. He called Ganpat who accordingly went there and there was again an altercation between him and Zalim who wanted to stay in the house against the wishes of Ganpat and also of Chaheti. Ganpat left and Zalim followed him. Ganpat's field was close to Chaheti's house and in less than 30 paces Zalim overtook him in the field and stabbed him with a knife on the right side of the chest causing a triangular punctured wound f"x?," in the ninth intercostal space cutting the lower margin of the lower lobe of the liver to the extent of about ?" and puncturing the transverse colon at its right side. A portion of the omentum came out through the wound Ganpat gave a cry that Zalim had stabbed him and this brought his son Ramkishun on the scene from near their darwaza, where he had been tying a bullock. Ramkishun chased Zalim, and Ganpat, followed, pressing his wound. Several villagers including Subhnarayan the chaukidar, who happened to be near the scene joined in the chase and when Ramkishun was on the point of seizing Zalim about 132 feet away from where, Ganpat had been stabbed Zalim turned found and stabbed Ramkishun with the knife on the right and the left side of the chest besides giving him along skin-deep cut below the stab on the right side. Ramkishun fell down and Ganpat fainted. Father and son were shortly afterwards taken by the villagers to the hospital at Sitamarbi about 4 miles away. Ramkishun died there at 5. 30 A.M. on September 2 and Ganpat at 1 P.M. on the same day. The Assistant Surgeon made the usual post mortem and put down Ganpat's death to the shock caused by the punctured wound on the chest, and that of Ramkishun to haemorrhage and shock caused by the two stabs: the stab on the left side was in the seventh intercostal space and had inter alia cut in the lower margin of the lower lobe of the left lung and penetrated the large intestine near the splenic pleura and that on the right side was in the fourth intercostal space, and penetrated the middle lobe of the right lung. About an hour after the admission of Ganpat and Ramkishun in the Sitamarhi hospital Subhnarayan, the chaukidar himself an eye-witness of the occurrence, had lodged an information of the occurrence at the Police Station of Sitamarhi at 10 o clock that night. This information is pretty full and mentions the names of no less than 10 out of the eye-witnesses of some part or other of the occurrence, if not the whole occurrence.

(3.) Zalim surrendered at the thana on the following day. On September 2 he made a confessional statement to a Magistrate P. W. No. 22, in which he claims to have married Chaheti in Asarh and stopped Ganpat's improper expenditure from Chaheti's funds, "so Ganpat did not wish that I might stay there." After stating in that way what led to the occurrence, Zalim told the Magistrate: Ganpat, Ram Lagan Kishun, Dasrath, Gayan, Chand and Nandu Kalwar with about 40 men more having formed an unlawful assembly entered in to my house and began to beat me with fists. In order to save my life 1 took out a chhuri (knife) from my pocket and assaulted Ganpat with it. Thereupon Lagan aimed a knife at me. I moved aside and that knife hit Ramkishun. I ran away and entered a sugar-cane field. I have not assaulted any one else.