BASHEER Vs. STATE

JUDGEMENT

(1.) The first accused in S.C. No. 14 of 1986, on the file of the learned Principal Sessions Judge, Madurai, has preferred this appeal, challenging the legality and correctness of his conviction under Section 302 of the Indian Penal Code and sentence to undergo imprisonment for life. The appellant herein, who is A.1 before the Trial Court, and four others were tried for the following five charges : (1) A. 1 - 148 I.P.C. (2) A. 2 to A. 5 - 147 I.P.C. (3) A. 1 - 302 I.P.C. (4) A. 2 to A. 5 - 302 read with 149 I.P.C. (5) A. 5 - 336 I.P.C. On the allegation that on the night of 25-5-1985 at about 10.30 p.m. at Madurai East Mada Street, near automatic telephone exchange, they formed themselves into an unlawful assembly, with intention to create disturbance and attacked the deceased and during the course of the same transaction A.1 stabbed the deceased on the right flank and as a result of the same he died on 27-5-1985 at about 4 p.m. at the Government Rajaji Hospital and it is further alleged that the other accused also assisted the first-accused in committing the said offence and further A.5 picked up a soda-bottle from the nearby shop and threw it into the shop of the deceased. To susbstantiate the above charges, the prosecution examined P.Ws. 1 to 15 and filed Ex. P.1. to P.27 and marked M.Os. 1 to 8. The case of the prosecution, as seen from the evidence, oral and documentary, can be briefly stated as follows : The deceased was running a night-stall in the platform at East Mada Street near automatic telephone exchange and used to sell eatables. P.W. 3 is his brother. P.W. 2 his brother-in-law and another Abdullah and P.W. 1 also were employed in the said shop. All the five accused used to visit the said shop during night hours and take eatables. They used to pay money if they had and if they have no money, they used to put the dues on account. It has been so entered in A. 2's account by the deceased and his brother P.W. 3.

(2.) On they day of occurrence, on 25-5-1985 at about 10 p.m., all the five accused, as usual, came to the stall of the deceased and had eatables and for that they had to pay a bill for Rs. 9.50. When P.W. 3 demanded the money, they asked him to enter the same also in the account of A.1 Then P.W. 3 informed the same to his brother the deceased, who told him to collect not only the money payable on that day, but also the earlier dues. When P.W. 3 accordingly demanded the money from the accused, A.1 found fault with him for demanding the cash and abused him and came in front of the shop of the deceased. Then A.1 to A.4 beat the deceased. A.5 also came there. He also beat him. A.2 to A.5 caught hold of the deceased. At that time, A.1 picked up M.O. 4 knife from his waist and stabbed him on the right flank. When the deceased raised a hue and cry that he was stabbed, the accused ran away from the scene place and stood at the bunk of P.W. 10. Thereupon, the injured was taken in a rickshaw by P.Ws. 1 and 2 to the Government Hospital. At that time, A. 5 took a soda bottle from the shop of P.W. 10 and threw the same at the stall of the deceased. At about 11 p.m., P.W. 4, the medical officer attached to the Government Rajaji Hospital, Madurai, examined Kidhar Mohammed, who was alleged to have been stabbed by a person with a knife at about 10.00 p.m. at Kila Masi Street near telephone exchange and P.W. 4 found on him the following injury : 'An incised wound about 4 c.m. in length in the right loin with muscle exposed.' According to him the patient was conscious, and he obeyed the commands. He ordered for the X-ray of the abdomen and chest and the patient was admitted in the accident ward. Ex. P.3 is the extract of the accident register. He was of further opinion that the injury could have been caused by stabbing with a knife and that the injured would have been conscious for about two hours after receipt of the injury and could have been in a fit position to talk. P.W. 5 is a Civil Assistant Surgeon attached to the Government Rajaji Hospital, Madurai. He examined Kidhar Mohammed at about 11.10 p.m. on 25-5-1985, at the accident ward and he conducted operation on him. According to him, prior to the operation, the injured was fully conscious. Ex. P.4 is the case-sheet.

(3.) P.W. 14 is the Sub-Inspector of B. 1 police-station, Madurai. At about 10.30 p.m., while he, along with a constable, was on night beats, he came to know that a person, who was running a parotta stall on the platform near automatic telephone exchange, was stabbed and they went to the scene place. On learning that the injured was taken to the Government Hospital, they went to the Government Hospital at about 11.30 p.m. and got the intimation Ex. P.21. Thereupon, they went to the accident ward, where the injured was admitted and recorded his statement Ex. P.22 at about 12.15 a.m. He also seized M.Os. 1 to 3 in the presence of P.Ws. 1 and 2 under mahazar Ex. P.1. Thereupon he returned to the police-station at about 12.45 a.m. and he registered a case on the basis of Ex. P.22 in Crime No. 604 of 1985 under Sections 341 and 307 of the Indian Penal Code and prepared the first information report Ex. P23. He took up investigation and reached the scene place at about 1.30 a.m. He examined P.W. 11 and others and prepared the observation mahazar Ex. P.3 and rough sketch Ex. P.24 in their presence. At about 2 a.m. he seized M.Os. 5 to 8 under mahazar Ex. P.14, attested by P.W. 11 and another. At about 2.15 a.m. he again came to the Government Hospital. Since the injured was in the surgical room, he examined P.Ws. 1 to 3 and others. P.W. 9 is the Special Judicial First Class Magistrate, Madurai. It is his evidence that at about 4.40 a.m. on 26-5-1985 he received a requisition Ex. P.9 from the hospital to record the dying declaration of Kidhar Mohammed and he reached the hospital at 4.50 a.m. and saw the injured Kidhar Mohamed, who was in the unconscious state. He did not record any statement from him. Again at about 3.45 p.m. he received a requisition Ex. P.10 from the Sub-Inspector to record the dying declaration and accordingly he went to the Government Rajaji Hospital at 3.55 p.m. and at that time the injured was conscious and was in a fit state of mind. to give a statement and accordingly after disclosing his identity, P.W. 9 questioned the injured as to whether he was willing to give a statement and when the injured answered in the affirmative, he recorded his dying declaration Ex. P.11 Ex. P.12 is the certificate issued by the medical officer as to the unconscious state of the injured when P.W. 9 first went to the hospital to record his statement. P.W. 14 also recorded the 161 statement of the injured at about 12.30 p.m. on 26-5-1985 and that is marked as Ex. P.25. He arrested the second accused on 27-5-1985 at about 6 a.m. at Yaraikkal stone bridge. Thereupon, he sent the second-accused for judicial remand. He examined P.W. 10 and others at the scene place. On the same day, A.1 surrendered himself before the Judicial Second Class Magistrate, Thirumangalam. At about 4 p.m. on 27-5-1985, the injured Kidhar Mohamed died in the Government Hospital and intimation to that effect Ex. P.6 was received by P.W. 14 and on the basis of the same, he altered the offence into one under Section 302 of the Indian Penal Code and prepared express report Ex. P.26 and copies thereof and sent them to the Inspector of Police as well as to Court. He also informed the Inspector over phone about the registering of the case. P.W. 15 was the Inspector of Police of Madurai Central Circle. At about 6 p.m. on 27-5-1985, he received the message of registering a case through phone from P.W. 14. He went to the police-station and got a copy of the express report and took up investigation. He inspected the scene place. Since it was night time, he could not conduct the inquest. On 28-5-1985, between 7 a.m. and 9.15 a.m. he held inquest on the dead body and during inquest he examined P.Ws. 1 to 3 and others and the inquest report is Ex. P.27. Then he entrusted the dead body of the deceased to a constable with a requisition Ex. P.7 to the medical officer to conduct autopsy. P.W. 8 is the Assistant Professor in Forensic Medicine in the Madurai Medical College, Madurai. In pursuance of the requisition Ex. P.7 from P.W. 15, he conducted autopsy over the dead body or Kidhar Mohamed on 28-5-1985 at about 10 a m. and he found on the body of the deceased the following external injuries : "An oblique sutured stab injury on the 7th intercostal space on the posterior axillary line right side 4 cm x 0.5 cm entering the thoracic cavity. Wound margins are regular and both ends pointed." On dissection, he noticed the following injuries :