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ALLAHABAD HIGH COURT
K. B. Srivastava, S. K. Kau, J.
ABDUL HABIB
VERSUS
THE STATE
Criminal Appeal No. 596 of 1970 (Against judgment passed by B. D. Mathur, S.J., Lucknow, D/- 5-12-1970),
Decided On : August 16, 1973
CRIMINAL APPEAL - SECTION 302 IPC - MURDER - RIGHT OF PRIVATE DEFENCE - SECTION 59, 99, 100, 339, 340, 349, 350, 351 IPC - ARMS ACT, 1959 - SECTION 25 - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant, Abdul Habib, was convicted under Section 302 of the Indian Penal Code for the murder of Naresh Kumar. The prosecution alleged that the appellant stabbed Naresh Kumar with a knife while fleeing from a crime scene where he had stabbed another person, Sarwan Singh. The appellant claimed that he acted in self-defense, as Naresh Kumar and others were trying to arrest him without authority.
Finding of the Court:
The court found that the appellant had indeed stabbed Sarwan Singh and that he had fled from the scene. However, the court held that Naresh Kumar had no right to arrest the appellant, as he was not a police officer or a private person authorized to make an arrest under Section 59 of the Code of Criminal Procedure. The court also found that the appellant had exceeded the limits of self-defense by stabbing Naresh Kumar multiple times with a knife.
Issues: 1. Whether Naresh Kumar had the right to arrest the appellant. 2. Whether the appellant acted in self-defense. 3. Whether the appellant exceeded the limits of self-defense.
Ratio Decidendi: 1. The court held that Naresh Kumar did not have the right to arrest the appellant because he was not a police officer or a private person authorized to make an arrest under Section 59 of the Code of Criminal Procedure. The court noted that Section 59 only allows private individuals to arrest persons who commit non-bailable and cognizable offenses in their presence. In this case, the appellant had not committed a non-bailable and cognizable offense in Naresh Kumar's presence. 2. The court held that the appellant did act in self-defense, as Naresh Kumar and others were trying to arrest him without authority. However, the court found that the appellant had exceeded the limits of self-defense by stabbing Naresh Kumar multiple times with a knife. The court noted that Naresh Kumar was unarmed and that the appellant could have simply fled from the scene without causing him any harm.
Final Decision: The court dismissed the appellant's appeal and upheld his conviction for murder under Section 302 of the Indian Penal Code.
K. B. Srivastava, J. :- The appellant Abdul Habib has been convicted under Section 302 of the Indian Penal Code, and sentenced to undergo imprisonment for life. This appeal is directed against that conviction and sentence.
2. The prosecution case, in brief, is as follows :-
One Dr. Kapur in the Army Medical Corps. was posted at Lucknow and was occupying the Payagpur house as his residence. Sarwan Singh (P.W. 13) was also in Army Services and one of his duties was to carry Army dak to the residence of Dr. Kapur. He went to deliver the dak, as usual at about 4.45 p.m. on January 17, 1970 and after parking his cycle outside the house, delivered the dak to him. While he was about to return after delivering the dak, he noticed the appellant mounting his cycle and attempting to run away. Sarwan Singh challenged the appellant to stop and intercepted the flight by catching hold of his cycle. The appellant thereupon whiped out a knife and gave a stab blow near the right elbow and then leaving the cycle aside took to his flight. Sarwan Singh raised a hue and cry and many person joined in the pursuit of the fleeing appellant. They were raising a slogan that the appellant should be arrested. Bhimsen Mehta (P.W. 1) and his son Naresh Kumar, a young lady, aged about 18 years, were standing near a Pan Shop situate in the close vicinity of Narang Building on the Ashok Marg, in the city of Lucknow, when the appellant emerged from the Narhi Galla Mandi lane and started running on the Ashok Marg, branding a knife, and continued his flight in the direction of Narang Building. The slogan that was being raised by the pursuers, was heard by Naresh Kumar who advanced towards the appellant with the intention of apprehending him but the appellant in order to evade his arrest, struck a blow by his knife and stabbed him in his abdomen and repeated the blow and stabbed him on the buttock also. In the meantime, Bhimsen Mehta and those pursuing the appellant apprehended him, but not before the appellant had been given a large number of blows to disable him from further flight. A. N. Das (P.W. 5) took the injured Naresh Kumar to the Civil Hospital. Bhimsen Mehta dictated his F.I.R. to Sant Bux Singh (P.W. 4) and thereafter he and several others took the appellant and the knife Ext. 1 recovered from him, to police station Hazratganj, where Bhimsen Mehta got his F.I.R. registered at 5.20 p.m.
3. The investigation was made by S.I. B. D. Sharma (P.W. 14) who recorded the statement of Bhimsen Mehta, Raj Kumar Gulati and Ram Swaroop, P.Ws. 1 to 3 and of several others at the police station. The injuries of Naresh Kumar were examined by Dr. Yadubir Saran Das (P.W. 12) at the Civil Hospital at 5.10 p.m. and he was found to have received the following injuries :-
1. Incised wound 1" x 1/2" x 1 3/4" deep starting from the medial side and going laterally 5 1/2" below the left nipple.
2. Incised wound 1" x 1/2" x 1 3/4" starting superiorly and going inferiorly on the left buttock and
3. Abrasion 1/2" x 1/10" on the middle and vertical surface of the left ring finger.
His condition was petty low and therefore, after 10.30 p.m. he was sent to the Medical college. He died on January 20 and then his autopsy was held by Dr. S. B. Lal Saxena at 1 p.m. on January 20. He found that the deceased had sustained the following ante-mortem, external and internal, injuries -
External injuries.
1. Stitched wound 10" with 26 stitches, 9 1/2" below the inner part of the left clavicle on the left side of the abdomen extending upto lower abdomen.
2. Stitched wound 6 1/2" with 16 stitches on the left side of the lower chest joining injury No. 1. 7" below left nipple.
3. Stitched wound 1" with two stitches on the left buttock.
4. Superficial cut 1 3/4" x linear on the right buttock and
5. Three abrasions in an area of 5 1/2" x 2 x 1/2" on the inner aspect of upper right leg.
Internal injuries.
There were stitched wounds on the left side of the chest, on the pleura, diaphragm, abdome
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