AKBARKHAN YUSUFKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By virtue of the impugned conviction judgment and order, the appellant-accused Akbarkhan Pathan came to be convicted for having committed offences punishable under Sec. 302, IPC and Sec. 135(1) of the Bombay Police Act and resultant sentence of imprisonment for life and to fine of Rs. 500/- and in default, to undergo 5 months; R.I. under Sec 302, IPC; whereas 15 days' R.I. and fine of Rs. 100/-, in default, further R.I. for 10 days for the offence under Sec. 135(1) of the Bombay Public Act. Whether the said judgment is legal and valid is the sole question raised before us in this conviction appeal by the appellant-accused.

(2.) A short resume of the prosecution case may be stated First with a view to appreciating the merits of the appeal and challenge against it. The accused was sent up for trial before the Sessions court on the following allegations and version of the prosecution: That at about 8 a.m. on 17.3.1992, near the factory premises of Moinkhan in Millat Nagaar, Maninagar, Ahmedabad, the accused who was working as an employee alongwith his father in the shop of deceased Mukhtyar Ahmed, Firstly raised a demand for Rs. 200/- from the deceased for auspicious Ramzan Festival to which the deceased flatly denied. Being aggrieved and agitated, the accused went away, though his father continued to work there. Within about 20 minutes thereafter, he came with a knife and inflicted two knife blows on the person of the deceased out of which one landed on the chest and the other on side portion of waist. Therefore, in order to ward off the said blow, the deceased obviously made an attempt to snatch away the knife from the hand of the accused and in that process, there was scuffle. The accused also sustained injuries. He fled away from the venue of offence and deceased who had sustained serious injuries succumbed to the same before he could be taken to the hospital for treatment.

(3.) The dead body of the deceased was shifted to L.G. Hospital, Ahmedabad. The deceased, on being examined medically, was declared dead. Intimation to that effect was given by the hospital to the constable on duty in the hospital who in turn sent it to Maninagar police station, as a result of which, the concerned PSI rushed to the hospital, recorded the complaint of the brother of the deceased, Zakir Ahmed as narrated by him which is produced at Exh. 8. The PSI J.K. Vachhani, PW. 9, Exh. 28 after making a special report, started investigation. Statements of witnesses were recorded and panchnamas were prepared. Samples and muddamal articles were sent to the Forensic Science Laboratory for examination and report and upon completion of the investigation, the police charge-sheeted the accused before the Metropolitan Magistrate who in turn committed the accused to the City Sessions Court at Ahmedabad for trial wherein, sessions case No. 300 of 1992 was registered against the accused and charge was framed against the accused at exh. 2 on 12.12.1992 for the offences punishable under Sec. 302, IPC and under Sec. 135 of the Bombay Police Act to which the accused denied and desired to be tried. The defence of the accused has been that he being employee of the deceased, demanded an amount of Rs. 200/which was a cheap source of indignation and agitation on the part of the deceased on the day of the incident like that on 17.3.1992. The accused again requested for the same amount as he wanted to celebrate Ramzan Festival. He also told the deceased that business is run very well because of Ramzan month, therefore, what objection he could have in giving the amount Rs. 200/-? Since his request went in smoke as it was not accepted to by the deceased, he stated that now he will find out employment elsewhere. It is further the case of the defence that thereafter deceased Mukhtyar became very wild and agitated. Thereafter, the accused left the shop of the deceased. It is further the case of the defence that he went to another shop for employment and he got the job as such and he was also likely to get Rs. 200/- from the new master. Subsequently, he returned to the shop of the deceased where his father was working. On coming back, he told his father that since he had obtained a job, his father also should not continue to work in the shop of the deceased. Thereafter, it is the version of the defence that the deceased again became very much agitated and annoyed and shouted at the accused saying that he can go to any place he likes but why he insisted his father to go along with him ? When this happened, the deceased was standing in front of the shop which is a butcher's shop. All of a sudden, the accused was pushed by the deceased.