Patna High Court
Abdul Aziz Alias Zalim Khan vs Emperor on 27 April, 1933
Equivalent citations: 148IND. CAS.574, AIR 1933 PATNA 508
JUDGMENT Dhavle, J.
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 ½" 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.
4. In the Court of Sessions Zalim admitted making a statement to the Magistrate but denied that the Magistrate had recorded. it correctly. He had produced a knife (Ex. 1) before the Sub-Inspector, but he dented in the Sessions Court that he had done so. This particular point is, however immaterial because not only is the medical evidence to the effect that the injuries on Ganpat and Ramkishun could not have all been caused with this knife a biggish pocket-knife with a blade about 4 inches long and a handle slightly longer, but the prosecution evidence also is that he had caused the injuries with a larger knife. The plea taken on his behalf in the Court of Sessions was that the prosecution story was false and concocted, and in the alternative that he had the right of private defence of his person. In his petition of appeal from jail, Zalim suggests enmity-with the Sub-Inspector of Sitamarhi besides the enmity with Ganpat which, was indicated in his confessional statement to the Magistrate and referred to in his statement in the Court of Sessions.
5. The evidence in the case fully establishes that the occurrence took place in the manner alleged by the prosecution so much so that the learned Sessions Judge and all the assessors with whose aid the case was tried had no hesitation in accepting it. Zalim's counter version of Ganpat coming up with a large unlawful assembly and beating him with fists was not only not supported by any evidence but was not so much as suggested to the numerous eyewitnesses examined in the case. The Pleader for the defence did not dispute the prosecution evidence at the time of argument and the learned Advocate who appears for Zalim in this Court has also found himself in the same position, the evidence of the witnesses being supported among other things, by the dying declarations of Ganpat and Ramkishun. It is true that Zalim had two slight contusions to show, one on the right elbow and the other on the left shoulder blade, but there is no evidence of any struggle between him and his victims or their friends, and the villagers failed to seize him, doubtless because of the knife which he had used with such effect upon Ganpat and Ramkishun.
6. The only points that have been argued in the case relate to whether the killing of Ganpat and Ramkishun by Zalim amounts to murder or to a lesser offence. If a person stabs another in the chest or abdomen with sufficient force to penetrate such structures as were penettrated in the present case, he must clearly be held to have intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death; the killing of both Ganpat and Ramkishun would, therefore, prima facie amount to murder.
7. As regards Ganpat, however, it was argued in the Court of Session that the case came with in the fourth exception to Section 300 which reduces the offence from murder to culpable homicide if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. The learned Sessions Judge was of opinion that this exception did not apply because though there was "an altercation and exchange of hot words and abuses" between Ganpat and Zalim the fatal blow was premeditated as Zalim had brought a big knife and had sent for Ganpat through Muradan Mian. The learned Advocate has urged that Muradan's evidence should not be believed because according to Ganpat's dying declaration the man was a labourer of Ganpat's enemy Mitan so that Ganpat wag not likely to respond to the call and also because Muradan was not found by the Sub-Inspector for three days. But it is beyond question that Ganpat did go to Chaheti's house in, the evening and there was no suggestion made that he had done so without invitation There is also nothing suspicious in the slight delay in finding Muradan--it was not surprising that he was not named in the first information and it could only have been after learning of Ganpat's dying declaration that the Sub-Inspector looked out for any labourer of Mitan's who had been sent to call Ganpat. Premeditation or not, moreover, excep. 4 cannot apply because, even if Ganpat be said to have been stabbed in the heat of passion upon a sudden quarrel, it is impossible to hold that there was a sudden fight also between Ganpat and Zalim and the stab cannot be said to have been given without the offender having taken undue advantage; See Queen v. Akal Mahomed 3 W.R. 18 Cr. In this Court the learned Advocate has endeavoured to bring the killing of Ganpat within the first excep. to Section 300. He has referred to the evidence of witnesses like Subhnarayan and Ramdhari P.W. No. 5, the Ganpat and Zalim were "in hot temper" when they came out of Chaheti's house. He has also referred to Ganpat's giving Zalim a push in the morning and wanting to turn him out of Chaheti's house in spite of Zalim's relation to Chaheti. Though he cannot point to any evidence supporting Zalim's allegation of a nikah with Chaheti, he has urged that the admitted fact that Zalim tried to induce Chaheti to execute a will in his favour and that she received the suggestion seriously enough to consult her brother about it, points to an intimacy between Zalim and Chaheti which taken with his relation to her (such as it is) through her brother's brother-in-law, was sufficient to constitute (abuse from a mere karpardaz) gross provocation. But the push given by Ganpat in the morning cannot be regarded as sudden provocation for the occurrence of the evening. The abuse indulged in by a mere karpardaz in the evening can also hardly constitute provocation within the meaning of the exception because Chaheti was Obviously with her karpardaz Ganpat and Zalim had no right to thrust himself on Chaheti. Nor can it be said that the provocation for the occurrence in the evening was not sought by Zalim himself; he had sent for Ganpat and could have had no reason to think that matters would then turn not differently from his experience of the morning. The carrying of a knife of a size to cause the deep stabs on Ganpat and Ramkishun also spells premeditation, for it is not shown that such a knife was usually carried by the appellant. The contention therefore, that the stab on Ganpat was within the first excep. to Section 310 must be negatived. It has not been suggested that any other exception applies. The killing of Ganpat was clearly murder and Zalim's conviction under Section 302 in respect of this killing should, in my opinion, be affirmed. There is also no reason to pass the smaller of the two sentences provided by law for this murder. I would, therefore, confirm the sentence of death.
8. As regards the stabbing of Ramkishun it was urged before the Sessions Judge that the case was covered by excep. 2 relating to the right of private defence. The learned Sessions Judge negatived this contention on the ground that Zalim having committed a non-bailable and cognizable offence was liable to arrest by private persons, and also on the ground that the double wounds inflicted on the abdomen which is a very delicate part of the body were not justifiable to evade an arrest which Ramkishun was justified to make.
9. Section 59 of the Code of Criminal Procedure, however, only entitles private person to arrest any person who in his view commits a non-bailable and cognizable offence and the words "in his view" mean "in his presence" or "within sight of him" and not "in his opinion": See Gokhul Tatwa v. Emperor 89 Ind. Cas. 1030 : 7 P.L.T. 65 : 26 Cr. L.J. 146 : A.I.R. 1926 Pat. 53. It is clear that if Ramkishun was as he says tying his cattle when he heard his father's cry he could not have seen Zalim stabbing Ganpat but had only come out of his house after his father's cry. He was, therefore, not entitled to arrest Zalim see Alawal v. Emperor 64 Ind. Cas. 371 : 23 Cr. L.J. 3 : 19 P.L.R. 1922 : A.I.R. 1922 Lah. 73. Zalim was entitled in the circumstances to exercise the right of private defence of his person, There could also have been no premeditation so far as Zalim's stabbing of Ramkishun was concerned. All the four assessors thought that Zalim's intention in stabbing Ramkishun was not to cause his death but to evade arrest. It does not appear in the circumstances that he had any intention of doing more harm than was necessary for the purpose of effecting his escape. In a somewhat similar case Farid v. Emperor 9 Ind. Cas. 452 : 12 Cr. L.J. 81, two Judges of the Sind Judicial Commissioner's Court upheld the application of excep. 2 to Section 300 to the case of a man who was concealing himself from the Police, was seized by the deceased and two others and in order to rescue himself struck the deceased two severe blows on the head and shoulder with an axe which he had in his hand at the time. In the present case the right of private defence was undoubtedly exceeded, but it cannot be said that it was exercised in such a manner as to take the matter out of excep. 2. That means that the offence was not murder but culpable homicide.
10. The learned Advocate for the appellant has further urged that excep. 1 also applies to the stabbing of Ramkishun. As has been already shown, Ramkishun was not entitled under Section 59 of the Code of Criminal Procedure to arrest Zalim who was running away after the murderous assault on Ganpat. The conditions in which in England a homicide is reduced from murder to manslaughter are not less strict than those to be found in excep. 1 and yet it is settled law there that if a person unlawfully arrests or imprisons another and the person so, provoked immediately and unjustifiably kills the other the offence is man slaughter and not murder: See Halsbury's Laws of England, Vol. IX, p. 580, Para. 1176 with Footnote(a). A comparison of the language of the second proviso to excep. 1 with that of the first two paragraphs of Section 99 of the Indian Penal Code leads to a similar conclusion under the law of India. The provocation that will bring a case within the exception mutt, according to the proviso, not be provocation given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers. Under the first two paragraphs of Section 99, on the other hand, the right of private defence is not available against acts done or directed by public servants acting in good faith under colour of their office, even though such acts may not be strictly justifiable by law; unlike the second proviso to excep. 1, the exclusion of the right of private defence is not confined to things done in strict conformity with the law. An arrest or attempted arrest by a private person, if not strictly justifiable by law, is thus not outside the provocation mentioned in excep. 1. The right of private persons to arrest offenders is more restricted in India than in England where private persons are not only permitted but also required to arrest any person who in their presence commits a felony or dangerous wounding, etc., and are empowered to arrest on a reasonable suspicion of the commission of these and some other offences but that right must be taken with its restrictions in applying the Penal Code.
11. Upon the whole, it seems to me that there is no good reason why Ramkishun's stabbing should be regarded as not coming within excep. 1. It is, however, not absolutely necessary to decide the point in the circumstances of this case, for it is beyond question that this stabbing is within excep. 2.
12. I would, therefore, accept the contention that the stabbing of Ramkishun constitutes no more than the offence of culpable homicide not amounting to murder. It is unnecessary to pronounce any sentence for this offence in view of the sentence of death passed on Zalim for the murder of Ganpat.
13. I would accordingly dismiss the appeal, accept the reference and confirm the death sentence only in respect of the murder of Ganpat. As regards the killing of Ramkishun, I would allow the appeal, alter the conviction to one under Section 304, reject the reference and decline to confirm the death sentence.
Rowland, J.
14. I agree both as to the facts and as to the law. It seemed at first sight paradoxical that Zalim could claim a right of private defence against Ramkishun. Ramkishun had heard his father crying out and saw Zalim in flight, and pursued by Ganpat who was pressing his hands to the mortal wound. Ramkishun gave chase and for this Zalim stabbed him to death. But an examination of the statutes and the authorities has convinced us that there is no escape from the position that the law is as my learned brother has stated it, and we have to apply the law as we find it. It is popularly believed that a private person is entitled to arrest not only a criminal whom he sees in the act of doing the crime, but one whom he sees in the act of flight immediately after. This is not the law: see Kalai v. Kalu 27 C. 366, and Bolai v. Emperor 35 C. 361.
15. it is felt that the law is not in conformity with public feeling and the public conscience, the only remedy is by way of amendment.