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2004 DIGILAW 377 (ALL)

Barkat Ullah v. State of U. P.

2004-02-24

G.K.GUPTA, VISHNU SAHAI

body2004
VISHNU SAHAI, J. ( 1 ) THIS appeal has been preferred by Barkat Ullah against the judgment and order dated 30-4-1981, passed by the Sessions Judge, Sultanpur, in Sessions Trial No. 41 of 1981, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 I. P. C. ( 2 ) SHORTLY stated, the prosecution case runs as under : At the time of the incident, informant-deceased Ram Duularey and appellant Barkat ullah were residing in village Gosai Ki Maria (Musai Ki Mathia) in Kasthuni West within the limits of Police Station Musafirkhana, district Sultanpur. There was enmity between appellant Ram dularey on one hand and Khalil alias Khaliq, the daughter of whose brother was married to the appellant on the other. In the litigation, which was pending between them at the time of the incident, the appellant used to do pairvi on behalf of Khalil alias Khaliq. On 4-2-1980, at about 1. 00 P. M. , when ram Dularey was returning from Musafirkhana and had reached the Kachhi Road also known as Patnawali Road, the appellant came all of a sudden; started abusing him; and told him that he would kill him. Hearing this, Ram Pratap PW 3, Ganga Deen pw4 and some others came. In the meantime, the appellant inflicted a solitary knife blow on Ram Dulareys stomach, which resulted in intestines protruding out. Thereafter, the appellant ran away. Although Ram pratap and others made an endeavour to apprehend him but they failed. Thereafter, Ram Dularey proceeded to police Station Musafirkhana, district sultanpur and lodged his oral F. I. R. ( 3 ) THE evidence of Head Constable rajendra Prasad Yadav P. W. 5 shows that on 4-2-1980, he was posted at Police Station Musaflrkhana, District Sultanpur. On the said date, at 2. 15 p. m. , informant Rani dularey came to the police station and lodged his oral F. I. R. (Ext. Ka 5), on the basis of which, he registered a case in the general Diary. ( 4 ) THE evidence of S. I. Lal Chand Dubey p. W. 8 shows that the F. I. R. was lodged in his presence and thereafter, he recorded the statement of informant Ram Dularey under section 161 Cr P C (Ext. Ka l7) and then sent him for medical examination. ( 5 ) THE evidence of Dr. ( 4 ) THE evidence of S. I. Lal Chand Dubey p. W. 8 shows that the F. I. R. was lodged in his presence and thereafter, he recorded the statement of informant Ram Dularey under section 161 Cr P C (Ext. Ka l7) and then sent him for medical examination. ( 5 ) THE evidence of Dr. Taufique Ahmad p. W. 2 shows that on 4-2-1980, at 2. 50 p. m. , he medically examined Ram Dularey and found on his person a solitary punctured wound 10 c. m. x 2 c. m. x stomach deep on the right side which has resulted in intestines protruding out. His evidence shows that in his presence and on his direction, the Head Clerk of the Dispensary recorded the dying declaration of Ram Dularey. Whatever Ram Dularey said he (Dr. Taufique ahmad) dictated to the Head Clerk who recorded it and after the statement was recorded it was read out to Ram Dularey, who then affixed his thumb impression on it. Since the condition of Ram Dularey was precarious, he stitched the said injury and sent ram Dularey for treatment to District Hospital, Sultanpur. It is pertinent to mention that while Ram dularey was being taken to District Hospital, Sultanpur, he succumbed to his injury. ( 6 ) THE autopsy on the corpse of deceased-Ram Dularey was conducted on 5-2-1980 at 4. 00 p. m. by Dr. A. C. Joshi P. W. 1, who found on it, the ante-mortem injuries enumerated hereinafter : 1. A transverse stitched wound 8 c. m. long on right side of abdomen at 8 c. m. distance towards right side of umbilicus. 2. Abrasion 2 cm. x 1 cm. over joint of left leg at 7 cm. distance above left ankle. On internal examination. Dr. Joshi found a tear in the small intestine and semi-digested food material in the stomach. The cause of death spelt out in the autopsy report was shock and haemorrhage as a result of ante-mortem injuries. It is pertinent to mention that in his statement in the trial Court, Dr. Joshi reiterated the said cause of death and also stated therein that injury No. 1 could be caused by a knife and injury No. 2 by fall. He also stated that the deceased could have died sometimes between 2. 30-4. 00 p. m. on 4-2-1980. It is pertinent to mention that in his statement in the trial Court, Dr. Joshi reiterated the said cause of death and also stated therein that injury No. 1 could be caused by a knife and injury No. 2 by fall. He also stated that the deceased could have died sometimes between 2. 30-4. 00 p. m. on 4-2-1980. ( 7 ) THE investigation was conducted in the usual manner by S. I. Lal Chand Dubey p. W. 8. After sending Ram Dularey for medical examination, he recorded the statements of Ram Prata