YUSUF Vs. STATE OF BIHAR

JUDGEMENT

(1.) Nine persons including the two appellants were tried for the murder of Ghulam Rasool as well as for attempting to murder P. W. 9, Mohd. Islam. Four out of those nine accused were acquitted by the trial Court. The remaining accused were convicted under several provisions of the Indian Penal Code. But in appeal, the High Court acquitted all the appellants before it in respect of the incident relating to the murder of Ghulam Rasool. Further it converted the conviction of appellant No. 1 for causing injuries to P. W. 9 from one under Section 307 read with Section 34, I. P. C. to one under Section 326, I. P. C. and for that offence sentenced him to suffer rigorous imprisonment for seven years. The conviction of appellant No. 2 Bano alias Ibrahim was converted from Section 307, I. P. C. read with Section 34, I. P. C. to one under Section 324, I. P. C. and for that offence he was sentenced to suffer rigorous imprisonment for three years. As against that decision this appeal has been brought by special leave.

(2.) The prosecution case in brief is that there was a Qawali competition about a month prior to the occurrence. P. W. 4 Imteyaz was one of the competitors. In order to show that his performance was excellent accused Nizam made a show of making a present of Rs. 3/- to him on that occasion. But on the very next day, he demanded back that amount. After some persuasion Imteyaz returned Rs. 2/- but he failed to return the balance of Re. 1/-. This led to a friction between Imteyaz and his friends on one side and Nizam and his friends on the other. On December 3, 1964, some of the accused persons including the appellants started a quarrel with Imteyaz and P. W. 5 Babu Qasab in connection with the return of the aforementioned Re. 1/-. Because of the intervention of P. W. 13, nothing serious happened on that day. But it is said that on the next evening at about 7 P. M. when P. M. 5, Babu Qasab and P. W. 6, Shamsuddin came near the scene of occurrence, the accused persons stopped them and assaulted them. Coming to know of that incident from P. W. 1, Naso, his father Ghulam Rasool went to the scene. There he was severely attacked as a result of which he died. Thereafter P. W. 9 came to know that there was a marpit going on at the scene and therefore he went to that place to see what the matter was. As soon as he went there, he was attacked by Chamo (appellant No. 1) with an instrument like Bhalla and by Bano with a Gandasa as a result of which he sustained serious injuries. Immediately P. W. 9 was shifted to the hospital where his dying declaration was recorded on December 5, 1964.

(3.) The High Court has disbelieved the witnesses speaking to the attack on Ghulam Rasool. As mentioned earlier all the accused were acquitted of the charges relating to that incident. The High Court has also come to the conclusion that it is not proved that there was any unlawful assembly. Even in the matter of attack on P. W. 9, the High Court has come to the conclusion that as there is no proof of previous concert on the part of the assailants, no aid can be taken from Section 34, I. P. C. Consequently it convicted the assailants of P. W. 9 only for the injuries caused by them.