HAMZA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant has challenged his conviction under S.302 I. P. C. and sentence to imprisonment for life.

(2.) WE shall briefly state the prosecution case; Hamsa, the appellant and Ahammad, the deceased were neighbours. On the date of occurrence, September 26, 1984, Hamsa cut and removed a bunch of banana from the property of Ahammad in his absence paying Rs. 10/- to his wife though Moosa, Ahammad's son bargained and wanted Hamsa to wait until his father returned after work. In the evening, Ahammad annoyed at this deal, went to the tea shop of Hamsa, returned the ten rupees, and demanded back the banana bunch. A quarrel ensued. Ahammad had to retreat as other shop keepers like PW 4 intervened. Hamsa and his father Marakkar while returning home from the tea shop at about 8 p.m. came in front of the house of Ahammad. They had to take the turn towards the north and go through the lane along the eastern side of the house of Ahammad to reach their home, Hamsa and Marakkar standing in front of the house of Ahammad challenged him using filthy and provocative words. Ahammad came on the road. Marakkar aged about 65 had M.O.3 walking stick. Hamsa had with him M. O.1 knife ordinarily used in the tea shop. The prosecution alleged that when Ahammad came on the road, Marakkar aimed a blow with the stick which Ahammad evaded. Ahammad and Marakkar grappled for the stick. The wife and children of Ahammad; who followed him made a hue and cry. PW 1, the younger brother of Ahammad residing close by was attracted to the scene. Ahammad managed to wrest the stick. He struck Marakkar with the same on his head. PW 1 intervened and separated Marakkar, while Ahammad was held by his wife and two sons, Marakkar then exhorted Hamsa to stab and Hamsa inflicted two stab injuries on Ahammad, one on the right side of the chest below the nipple and the other on his back below the shoulder. Ahammad walked for a few feet and fell down on the road. Hamsa and his father escaped from the scene with the knife. Ahammad died on the way to the Hospital. The incident was witnessed by Moosa, the son of Ahammad and Ami, his, wife, besides his brother Kunhammad (PW 1).

(3.) THE crime was registered against Hamsa and Marakkar for offence under S.302 read with S.34 I. P. C. on the basis of Ext. P1 first information statement given by PW 1 at 11.30 p.m. the same night. In the meantime Marakkar admitted in the Government Hospital was examined by the Doctor, PW 8. On the basis of Ext. P9 statement given by Marakkar, a counter case was registered against the deceased, Kunhammed and Moosa as per Ext. P10. The Circle Inspector investigated the two crimes, held the inquest on the dead body of Ahammad and visited the scene on 27-9-1984. He noticed blood stains on the road in front of the house, recovered M. O.3 stick and bunch of keys from the scene and M.O. 1 knife from the adjacent compound. The autopsy held by PW 7 revealed that Ahammad had two contusions and an abrasion and two incised injuries entering the chest cavity cutting the ribs and injuring the liver and lung. Death as certified in Ext. P4 had occurred due to the penetrating injury to the chest. Hamsa was examined by the Medical Officer on 29-7-1984 at about 9-30 a.m. He had tenderness at supra fubic region and abrasions on the right shoulder. Marakkar, admitted in the Hospital on 26-7-1984, had two lacerated wounds on the head besides abrasions and was discharged from the hospital only on 8-10-1984. The prosecution alleged that Hamsa and Marakkar sustained the injuries in the course of the same incident. Both the case and counter were charge sheeted on completing the investigation. The accused in the counter case were acquitted. In the present case Marakkar, the second accused, was acquitted while convicting the appellant rejecting the plea of private defence.