MOHAMMAD ISMAIL MOHAMMAD ISRAIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant-Mohd. Ismail alongwith his father Mohd. Ismail was tried before the Fourth Additional Sessions Judge, Nagpur in Sessions Trial No. 61 of 1997 for committing murder of his cousin sister Rafiqunnisa and for causing injury to his cousin Abdul Rehman (P. W. 1 ). The learned Sessions Judge by his judgment and order dated 11-2-1998 convicted the appellant of the offence under section 302 of I. P. C. and under section 324 read with section 34 of I. P. C. and sentenced to imprisonment for life and fine of rupees one thousand, in default to undergo R. I. for four months and imprisonment for three months and fine of rupees two hundred, in default to undergo R. I. for seven days, respectively. This order of conviction and sentence is under challenge in this appeal.

(2.) THE prosecution case as disclosed by the P. W. 1 Rehman before the trial Court is that his father Mohd. Usman and original accused No. 2 Mohd. Israil are real brothers and the appellant is the son of Mohd. Usman. The incident in question which gave rise to this prosecution against the appellant and his father took place on 25-10-1996 around 11. 00 a. m. just in front of the house of Mohd. Usman. The appellant and his father are residing in the neighbourhood of Mohd. Usman. There was dispute between Mohd. Usman and his brother between Mohd. Israil over the property and on that count there used to be frequent quarrel between them. On the date of the incident Mohd. Usman and his daughters namely Saibunnisa (P. W. 5) and Rafiqunnisa (the victim since deceased) were in the house. The appellant and his father Mohd. Israil came to the house of Mohd. Usman and there ensued a quarrel between them. It was almost oral wrangle between them, but in that as a natural consequence there was scuffle between them. It so happened that the complainant Abdul Rehman (P. W. 1) Mohd. Sultan (P. W. 4) (real brother of witness Abdul Rehman) on hearing noise of the quarrel and having been informed that the appellant and his father were quarrelling with Mohd. Usman rushed to the place of occurrence and intervened and separated Mohd. Usman as well as appellant Mohd. Ismail and his father Mohd. Israil. The appellant and his father in fact went away from that place, but both of them returned in a short while and they were armed with knives. They rushed to attack Mohd. Usman. There was scuffle between Mohd. Ismail and witness Abdul Rehman. In that process the weapons fell on the ground and they were interchanged. The appellant then came to assault, witness Abdul Rehman. In order to ward of the blow the witness Abdul Rehman turned back and at that time the victim Rafiqunnisa who was standing by the side of the door came to the rescue of her father Mohd. Usman and that time appellant-Mohd. Ismail assaulted her with the knife (article 11) giving a thrusting blow in her chest. She collapsed on the ground. She was immediately taken to Meyo Hospital, Nagpur where she was declared dead. The appellant ran away from the place of occurrence. His father Mohd. Israil who was also armed with the knife (article 12) caused injuries on the chest and chin of the witness Abdul Rehman.

(3.) THE witness Abdul Rehman was also treated in the Meyo Hospital and he was taken to Police Chouki in the Hospital where his statement (Exhibit 36) came to be recorded. It was on the basis of that report Exhibit 36 offence was registered vide Crime No. 383/1996 under sections 302, 324, read with section 34 of I. P. C. against the appellant and his father. After completing the investigation the charge-sheet was filed against the appellant and his father and the case was committed to the Court of Sessions for trial.