HAKAM MAHOMED JAINWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant in Criminal Appeal No. 397 of 1969 was original accused No. 1 and will be referred to hereinafter as accused No. 1. The appellant in Criminal Appeal No. 481 of 1969 was original accused No. 2 and will be referred to hereinafter.as accused No. 2. Accused Nos. 1 and 2 were put up for trial along with two other accused before the learned Additional Sessions Judge, Bombay. All the accused were charged with the offence under Section 302 read with Section 34, Indian Penal Code, and in the alternative accused No. 1 was charged with the offence under Section 802, Indian Penal Code, and accused No. 2 and the other accused were charged with the offence under Section 302 read with Section 109, Indian Penal Code. The learned Additional Sessions Judge convicted accused No. 1 of the offence under Section 302, Indian Penal Code, and sentenced him to suffer imprisonment for life and accused No. 2 of the offence under Section 302 read with Section 109, Indian Penal Code, and also sentenced him to imprisonment for life. These two accused have come in appeal against their convictions and sentences before us. The other two accused were acquitted and no appeals were filed against their acquittal.

(2.) THE prosecution case in brief was as follows: The deceased Abdul Wahid Khadim, who was also known as Badbadya, was residing in a building known as Kachwala Building on Nizam Road and doing the business of selling fruits as a hawker. He also carried on gambling in the streets at night. Witness Yasin Yamin (P.W. 2) was residing with Abdul Wahid in the same building and also took part in the business of gambling carried on by Abdul Wahid. On January 4, 1968 at about 12 noon there was a quarrel between accused No. 2 and Abdul Wahid over the selling of charas in the Kachwala Building. Abdul Wahid mentioned this to Yasin Yamin at about 4 p.m. when lie met him. Thereafter Abdul Wahid and Yasin Yamin went about together and were sitting on the Otla of the said Building after dinner till midnight. The incident took place at about 12 -30 at night or so. At about that time Abdul Wahid asked Yasin Yamin to bring cigarettes from a Bidi shop and when he returned with the cigarettes, Abdul Wahid told him that accused No. 2 was seen coming there with his companions and therefore they should run away. When they saw the accused running towards them from the side of Parsi Galli, both of them ran towards Ibrahim Rahimtulla Road. When they reached the main road, the accused, who were chasing them, started shouting 'Chor, Chor'. Some members of the public thought that Abdul Wahid and Yasin Yamin might have committed some offence and tried to stop them. Abdul Wahid told those persons not to stop him, because his pursuers would catch him and kill him. But, by that time he had become almost exhausted. He tried to hide himself in a building where there is a small Chappal shop of one Dawood. The accused caught him when he entered the passage on the ground floor of the building and accused No. 2 pulled him out near the steps to the passage. Accused No. 2 then told accused No. 1 to strike Abdul Wahid with the knife. Thereupon, accused No. 1 took out a knife and thrust it on the left side of the chest of Abdul Wahid. Abdul Wahid fell down and was seen bleeding from the injury on the chest. Accused No. 1 then asked his companions to find out where Yasin Yamin, the companion of Abdul Wahid, was, and on hearing this, Yasin Yamin ran away from that place. He went to Pydhowni Police Station and gave information about the case of stabbing to police Sub -Inspector Albal, who was on Station House duty, and his statement was subsequently recorded by S.G.S.I. Sawant. This statement is the first information report (exh. 5) on record. As soon as Yasin Yamin reported the case to Sub -Inspector Albal, the latter informed his superiors viz. S.G.S.I. Sawant and Inspector Jal. S.G.S.I. Sawant came down to the police station and recorded the complaint being first information report (exh. 5). In the meantime, he directed Sub -Inspector Albal to go to the scene of the offence and verify what had happened. S.G.S.I. Sawant visited the scene of the offence after recording the F.I.R. and drew up a panchnama of the scene of offence. He and the police officers accompanying him found the body of Abdul Wahid lying in the common passage on the ground floor. They also found a Rampuri knife lying just below the right thigh of the body of the deceased. The body was taken to the J.J. Hospital morgue and post -mortem was performed on the body by Dr. Majumdar. Head Constable Tandel arrested accused No. 2 and produced him at the police station at 2 a.m. on January 5, 1968 along with accused No. 4. As the shirt worn by accused No. 2 had blood -stains on it, it was taken charge of by the police. In the search of the person of accused No. 2, a metal box containing eight pills of charm was found in his right pant -pocket. This metal box as well as the said bloodstained shirt were taken charge of by S.G.S.I. Sawant under a panchnama. Accused No. 1 presented himself at the police station on January 6, 1968 at about 12:30 a.m. and was arrested.

(3.) HIS Lordship after dealing with the evidence in the case proceeded.