SHAFI SARDAR PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the judgement and order dated 25-1-1993 passed by the IInd Additional Sessions Judge, Solapur in Sessions Case No. 91 of 1992 convicting him under section 302 I. P. C. and sentencing him to undergo life imprisonment and to pay a fine of Rs. 10,000/- in default to further undergo R. I. for two years, has come up in appeal before this Court.

(2.) THE prosecution case in brief is that the informant (deceased) Mohammed Nadaf was resident of Vijapur, Begumpet, House No. 58, District Solapur. He used to reside in the aforesaid house along with his wife P. W. 7 Anwarbi Nadaf (respondent No. 2 ). He is alleged to have been selling ice at Vijapur and Shastrinagar. It is also alleged that the appellant used to sell ice at his shop in Vijapur. On account of the common business, a rivalry is alleged to have been existing between the two of them. It is said that the appellant in order to eclipse the informant-deceased was reducing and increasing the prices of ice. It is also said that about a month prior to the incident one Sayyad Sahab (not examined) had told the informant that the appellant had a complaint against him on account of the manner in which he conducted the aforesaid business. This according to the prosecution is alleged to have been the motive for the incident.

(3.) ON 16-11-1991, at about 6 p. m. while the informant was returning on a cycle, from his shop in Shastrinagar to his home and had reached near the mortuary of Civil Hospital, Solapur, the appellant from the backside on a cycle came and pulled down the informant. Thereafter, he is alleged to have given two blows with a knife on the stomach of informant and abused him in filthy language. As a sequel to the assault, the informant started running and at that time the appellant is alleged to have dealt another blow with a knife on his hip. It is said that the informant ran and came in front of the doctor in civil hospital. At the aforesaid hospital, he was admitted in the casualty ward. It is alleged that as soon as the informant rushed to the Civil Hospital, P. W. 5 Police Head Constable B. B. Dighe and P. W. 6 Head Constable J. D. Zombade met him and on making inquiries from him as to how he came to be injured, they were told by him that the appellant had assaulted him. A similar oral dying declaration near about the same time is also alleged to have been given by the informant to his wife P. W. 7 Anwarbi Nadaf who had reached the hospital on learning about the assault on her husband. P. W. 8 Wazir Nadaf real brother of the informant and P. W. 9 Noor Mohammed (Cousin brother of informant ). P. Ws. 5, 7, 8 and 9 are alleged to have said that the informant had told them that Mohammed Shafi Patel had assaulted him.