IMTIAZ HASAN PANJA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) APPELLANTS are original accused Nos. 1 and 2 respectively. The appellants and one Hasan Mehmud Panja were charged with offence punishable under section 302 read with section 114 of the Indian Penal Code. By the judgment and order dated 22nd September 1987 passed in Sessions Case No. 28/85, learned Sessions Judge, Junagadh though acquitted original accused No. 3, convicted original accused No. 1 for offence under section 324 of the IPC and sentenced him to rigourous imprisonment for one year and fine of Rs. 1,000/ -. Accused No. 2, appellant No. 2 herein was convicted for offence punishable under section 304 Part II of the IPC. He was sentenced to RI for five years and fine of Rs. 2,000/ -.

(2.) AS per charge Ex. 1, it was alleged against the accused persons that at about 11. 45 in the morning of 31. 10. 84, in the fish market of Jungadh town, they along with juvenile offender Mahmud Hasan had assaulted deceased Karim Mahmed with knife and caused his death and thereby committed offence punishable under section 302 read with section 114 of the Indian Penal Code. It was specifically alleged that accused No. 1 had given a knife blow to the complainant causing simple injury. He was charged with offence punishable under section 324 of the IPC. Accused No. 2 had given the fatal blow. He was, therefore, charged with offence under section 302 of the IPC.

(3.) COMPLAINANT, Osman Allarakha, PW-2 was examined at Ex. 22. He stated that he was doing the business of selling fish in the fish market. On the date of the incident, his wife and his nephew had reached the market at 7. 00 O' clock in the morning. He himself had reached at 10. 00 O' clock. Next to his stall, there is a stall of Hasan Mahmud Panja, who with the help of his three sons namely, Imtiaz Hasan, Iabal Hasan and Mahmud Hasan also sells fish there. At 10 O' clock when he reached, his wife told him that in the morning there was a quarrel with Imtiaz Hasan and Iqbal Hasan (who were the present appellants ). Therefore, Karim Amad was explaining to Hasan Mahmud and his sons not to quarrel. The witness was standing close to Karim. Imtihaz Hasan thereupon got excited and gave a knife blow on the head of the witness. Iqbal Hasan gave a knife blow to Karim Amad. At that time, accused No. 3 Hasan Mahmud and his third son Mahmud Hasan was standing nearby with knife in their hands and was shouting "kill them, kill them". Karim was bleeding. Hearing the commotion, some 5 to 10 people rushed there. He and Karim were taken in rickshaw to the hospital. During treatment, Karim died next day. In the cross-examination, he agreed that as a trader in fish market, every one would carry knife for cutting fish. On the date of the incident, he, his wife and others were also carrying such knives. He, however, denied that when the incident took place, Karim was carrying knife or that he had gone to the stall of the accused and attacked them with his knife.