ATMARAM GAJANAN PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the Judgement and order dated 28-7-1981, passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 350 of 1980, convicting and sentencing him to undergo imprisonment for life under section 302 I. P. C. , has come up appeal before us.

(2.) BRIEFLY stated the prosecution case runs as under:---On 12-3-1980, marriage of one Yesha an acquaintance of Mohammed Yameen Khan, P. W. 1 and deceased Mark Alexander on one side and the appellant on the other was scheduled to take place in Payalipada, Bombay. It appears that the appellant was a member of the marriage procession. At about 9 p. m. , the procession reached the place of marriage. At that time, Mohammed Yameen Khan and Mark Alexander were standing in the verandah of the place, where the marriage was to be performed. Mohammed Yameen Khan was keeping his hand on the shoulders of Mark Alexander. At that time, the appellant came there and said as to why they were standing like girls. Saying this, he pulled the hand of Mohammed Yameen Khan and since the latter was putting his hand on the shoulders of Mark Alexander, both of them fell down. Feeling infuriated Mohammed Yameen Khan slapped the appellant. A free fight between both the sides ensued. Friends of appellant started assaulting Mohammed Yameen Khan and Mark Alexander. They were all drunk. The appellant thereafter, ran in the direction of his house and returned within 5/10 minutes with a naked sword in his hand. Seeing him in such a condition, Mohammed Yammen Khan ran towards the house of his brother-in-law Mohammed Hussain Khan P. W. 2 and informed him about the appellant being armed with a sword. He told him that he should also have something to defend himself. Mohammed Hussain Khan dragged Mohammed Yameen inside his house. Mark Alexander was also with Mohammed Yameen Khan at that time. One Ali Bahadur Khadim Hussain P. W. 3 is said to have intervened between the appellant and Mark Alexander. Thereafter, Mohammed Yameen Khan and Mohammed Hussain Khan along with Mark Alexander went to the latters residence. At that time, Marks father Wallace Geogory Alexander P. W. 6, was present in the house. When Mark Alexander informed him about the incident he replied that he should leave the matter to him, and he would settle it. Thereafter, Mohammed Yameen Khan and Mohammed Hussain Khan along with Mark Alexander proceeded towards Mohammed Yameen Khans house. Near the house of Mohammed Yameen Khan, Mohammed Hussain left. Thereafter, Mohammed Yameen Khan and Mark Alexander went inside the house of the former. Mohammed Yameen Khans mother Shahjahan Begum was present in the house and told them that one boy by name of Fakira was inquiring about them. Mark Alexander replied that he will look into the matter, and asking Mohammed Yameen Khan to rest, left his place, Thereafter, Shahjahan Begum put a lock on the channel of the fencing door. The time was about 9. 30-10 p. m.

(3.) THE same night at about 11 or 11. 15 p. m. when Mohammed Yameen Khan was going to sleep, he heard shouts of Mark Alexander "yamin Yamin". On hearing them, Mohammed Yameen Khan rushed towards the front door, pulled that curtain aside and jumped towards the fencing gate. In panic, he had for gotten to bring the key of the lock which was fixed on the door. When he was at the door, he saw Mark Alexander and the appellant. The appellant had a sword in his hand and was trying to assault Mark Alexander with the same and the latter was trying to save himself. Mark Alexander succeeded in saving himself from one or two blows. Ultimately, when he tried to run away, the appellant inflicted a sword blow on the backside of his head. Thereafter, Mohammed Yameen Khan rushed inside the house brought the key and opened the lock of the channel door. He saw that Mark Alexander was running in the direction of his house with an injury on the back of his head and the said injury was profusely bleeding. At that time, Mohammed Yameen Khan saw the three brothers of appellant, Bhaga, Bhagwan and Prabhakar standing in the small lane near his house. On seeing them, he got frightened and came inside the house. It appears that while Mark Alexander was running to his house being chased, by the appellant at about 11. 30 p. m. one Mohammed Ali Abdul Gani P. W. 5 who was standing in a laundry in Payalipada (the area in which the incident took place) saw both of them. On seeing them, the appellant ran away. At that time, one Suleman was also along with Mohammed Ali Abdul Gani. Both of them asked Mark Alexander to stop and when the latter did, they found that he was injured by sword on the backside of his head and was profusely bleeding. They asked Mark Alexander as to what had happened and he replied that he was hit by the appellant with a sword. He also said that he was going to his house.