HABIB SULEMAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by accused 1 and 6 against, their convictions under Section 304, Part I, Penal Code for causing the death of Hyderali Nur Mahomed.

(2.) THE prosecution story briefly is that there is a long standing enmity between witnesses Fare-mahomed and Gulammahomed, who are the cousins of the deceased Hyderali, and accused 1 and his father. Accused 6 is the maternal uncle of accused 1. This enmity has resulted in several cases of assault and there have been several criminal cases between the parties. About two years ago accused 1 was convicted for stabbing Fatemahomed. Fatemahomed and Gutaminahomed were subsequently convicted for assaulting accused 1 s father. Proceedings for taking security for keeping good, behaviour were also instituted against both the parties.

(3.) ON 1-11-1954 at about 3-45 P. M Fatte Mahomed and Gulam Mahomed were returning to their room. The two appellants along with some other persons were then sitting in the room of accused 2. They came out of the room and? threw stones at Fatte Mahomed and Gulam Mahomed, Who in the meantime had gone on the 1st floor of their chawl. They were pursued by the accused. The accused gave them some blows with spears. Gulammahomed went inside one of the rooms while Fatte Mahomed Jumped down from the balcony and ran away. While he was running away, he met the deceased Hyder. Hyder and Patte Mahomed then walked towards their chawl. The accused pursued them. Fatte Mahomed ran away and concealed himself in the room of witness Talaji. Hyderali was assaulted with spears by the two appellants and some other persons. He died on the spot as a result of the injuries received by him. Shortly afterwards the police went there. They recorded the complaint of Fatte Mahomed in which he implicated the two appellants as being two of the assailants of Hyderali. Accused 1 also lodged a counter complaint in which he alleged that he had been beaten by six persons, including Fatte Mahomed, Gulam Mahomed and Hyderali. As Gulammahomed, Fatte Mahomed and ac-cused I had injuries on their persons, they were sent for treatment to the Civil Hospital. The doctor, who examined them, found that Fatte. Mahomed had one lacerated wound on the left thigh and an abrasion on the left palm. Gulam-mahomed had two lacerated wounds' on the left arm. The doctor also found one healed wound on the left thigh. Accused I had five injuries on his person. One was an abrasion on the right scapular region. The other four were incised wounds skin deep, one on the left palm, two on the left fore-arm and the 4th on near the left ear. The post-mortem examination of the dead body of the deceased showed that he had four incised wounds. This most serious injury was injury No. 1, which was an incised wound on the right side of the chest. There were serious internal injuries below this injury. Portions of both the right and left lobes were injured and 3/4th of the back part of ascending aorta was also cut. The second serious injury was injury No. 2 on the abdomen. On account of this injury small intestines were injured at two places and large intestines at one place. The third Injury was on the right upper arm, while the 4th one was near the armpit. In the opinion of the doctor, who held the post-mortem examination, injury No. 1 was sufficient to cause death in the ordinary course of nature, while injury No. 2 was also likely to cause death. After completing the investigation the police sent up a charge-sheet against 8 persons including the two appellants. They were charged with, being members of an unlawful assembly, the common object of which was to assault and belabour Fatte Mahomed, Gulammahomed and Hyderali and committing offences punishable under Sections 148, 302 and 324, Penal Code in prosecution of the common object of the unlawful assembly. Both accused 1 and 6 pleaded not guilty. Accused 1 admitted his presence at the time of the Incident. His story was as follows: "that day I had gone to collect rent near Babu Badrlprasad whose room is downstairs and towards the road. Haider, Fatemahomed, Gulam, Baldev, Kasam and Ismail Alaya assaulted me. Haider gave me a Dharia blow on my ear. I shouted "save, save" and went near the compound wall in between Advance chawl and Sakalchand Chawl. There I was surrounded by six persons. Kasam gave me two Dharia blows on my left hand in the meanwhile Fate Mahomed ran at me with a spear. I went aside. The spear blow hurt Haider on the chest. Then my uncles No. 2, Nos. 3 and 8 took me to my room. Then I was sent to the civil Hospital by the police. Then my statement was recorded". Accused 1 therefore denied that he had assaulted Hyderali, but on the other hand alleged that he himself had been beaten by Hyderali, the two witnesses Fatte Mahomed and Gulammahomed and some other persons. The other appellant, accused 6, denied that he had committed any offence.