NABI MOHAMAD CHAND HUSAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These four appellants question their convictions under section 302, 326 and 506 of the Indian Penal Code as far as accused No. 1 Nabi is concerned, with the aid of section 34 under sections 302 and 326 and section 506 of the Indian Penal Code as far as accused No. 2 Imtiaz is concerned and further with the aid of section 109 for the offences under sections 302 and 326 of the Indian Penal Code as far as accused No. 3 Nanhe and accused No. 4 Mohomed are concerned.

(2.) The additional Sessions Judge, Bombay, who tried these accused, recorded these convictions arising out of the prosecution case that during the night between November 12 and November 13, 1973, these four accused were involved in an incident that took place in Tosa Bakery situated in Vijaywadi Lane, Girgaum, Bombay. At Exhibit 4 is the map that delineates the locale of the place of the occurrence. The prosecution alleged that one Nissar Ahmed (P.W. 4) was working as a mistry, while Sorab Irani (P.W. 5) was doing supervisory work in Tosa Bakery. Accused Nos. 2 and 3 were working in a nearby bakery called Orient Bakery, while accused Nos. 1 and 4 were on visiting terms with them. It was suggested by the prosecution that sometime before the date of the incident, one Jabarali left Bombay and entrusted his work of distribution of breads to accused No. 2. Accused No. 2 in the course of the work was required to collect breads from Tosa Bakary and it was suggested that during the absence of Jabarali accused No. 2 collected breads but did not pay for the same and it was Jabarali who had to pay the amount of Tosa Bakery. Again, when Jabarali left in October 1973 for his native place, he did not entrust the work to accused No. 2, but entrusted the work to P.W. 4 Nissar Ahmed who had engaged two persons by name Noorali and Rahmatali to look after the work of Jabarali. This is said to be the spark providing for the eventual violence. Whatever may be the history earlier, what happened on the relevant date, that is on the night between Nov. 12 and 13, 1973, is that as Nissar Ahmed had finished his work and was resting on a cot in the verandah of Tosa Bakery, all the accused came and out of them accused Nos. 1 and 2 stood on the road and gave a call to Nissar Ahmed to come out. As Nissar Ahmed woke up and went near the steps of the verandah, accused No.1 questioned him about his dispute obviously with regard to jabarali entrusting the work of distribution of breads and further threatened that unless the dispute was settled then and there, they would not leave the place. Nissar Ahmed denied to have any dispute and suggested that if at all there was any such dispute, they should come the next day in the morning. Upon this, it was alleged, accused Nos. 1 and 2 took out knives which the prosecution suggests are the same as articles 9 and 10. As soon as the knives were taken out, both the accused rushed at Nissar Ahmed but Nissar Ahmed retraced himself and went inside the bakery shouting by the name of Mohomed Halim (P.W. 3). Mohomed Halim who was sleeping in the bakery woke up and came out and saw accused Nos. 1 and armed with knives. He, apprehending a fatal assault, picked up an iron bar and dealt a blow on the head of accused No. 2 Imtiaz. Accused No. 2 held the iron bar after the receipt of the blow and just at the time accused No. 1 Nabi stabbed Halim on the right side of his chest by means of the knife which was in his hand. As Halim shouted "Mar Dala, Mar Dala", one Eklat, who was sleeping on a heap of stones by the side of the steps that lead to verandah of the bakery, also work up. Accused No. 1 then turned to Eklat and with the knife, which was in his hand, dealt a blow on Eklats stomach. Eklat fell down as a result of the knife blow. When this assault was going on, it was alleged, accused Nos. 3 and 4 were giving shouts "Maro Sale Ko, Maro Sale Ko". Seeing that Halim and Eklat had received injuries, all the accused ran away from the place. Information was conveyed on telephone about the incident and just in few minutes a police van, upon receipt of instructions from the Control Room to the effect that a stabbing incident had taken place, came to Vijaywadi Lane. S.I. Kadam (P.W. 21), who was in charge of the police van along with Lance Naik Sambrekar (P.W. 2), put the injured persons in the van and proceeded towards C.T. Hospital. On the way, near Lokmanya Tilak Marg, Sambrakar got down and lodged a report as per Exhibit 6 which was taken down by S.I. Bahalme (P.W. 22). Having registered the offence, S.I. Bhalme proceeded to investigate the same. Mean while, he had instructed S.I. Rane (P.W. 20) to alert all police constable on duty and also to be in touch with Government Hospital so as to find out persons with head injuries and with further instructions to detain such persons. Eventually, information was received that in J.J. Hospital accused Nos. 1 and 2 had gone for treatment and that all the four accused together had gone by a taxi first to Nagpada Police Station and had contacted S. I. Sawant (P.W. 19). Therefore, as soon as accused Nos. 1 and 2 reached J.J. Hospital, because of the earlier alert caused to be given by S.I. Bhalme, all the four accused two of them having injuries, were apprehended and put under arrest at about 2.30 a.m. on November 13, 1973.

(3.) At G.T. Hospital, where the police van took the injured persons, there being no arrangement for immediate operation, the van was directed to St. Georges Hospital. Eventually, the injured persons were examined and treated there by Dr. Palliwar (P.W. 14) and Dr. Mulay (P.W. 15). Eklat and Halim were indoor patients and Halim was discharged from the hospital on November 16, 1973. Eklat succumbed, though given the necessary treatment, at about 9.55 a.m. on the morning of November 13, 1973. Dr. Mukhadkar (P.W. 16) of the St. Georges Hospital subjected the dead body of Eklat to post-mortem examination and recorded his notes as per Exhibits 33 on the same day.