BABOO KHAN Vs. STATE OF M P

JUDGEMENT

(1.) THIS Criminal Appeal has been filed against the judgment of the trial Court dated 25. 05. 1993 by which appellants have been convicted for offence under section 302 read with section 34 of the I. P. C. and sentenced for imprisonment of life.

(2.) THE prosecution story is that on 23rd september, 1989 at 8. 15 p. m. Jahid Baksh (PW4) and his brother Tahir had taken their buffaloes to the hand pump in front of masjid of Ghansu Munshi for giving water. Accused Tohid was filling water in his buckets at the hand pump. The buffaloes of Jahid baksh and Tahir drank water from the buckets of accused Tohid, on which Tohid started abusing, which led to an altercation between both the parties, on which Tohid picked up a lathi which was brought by Jahid to move the buffaloes and assaulted Jahid on his back and left the spot saying that "i will call baboo". After sometime Tohid and Baboo came with the sword. When the accused came, at that time, Jahid Baksh was collecting his buffaloes. On coming there, accused caught hold of Tahir and accused tohid inserted the sword on the left side of chest of Tahir. PW4 Jahid Baksh came out to save Tahir and Baboo attacked Tahir with the sword which caused injuries on the left hand finger of Tahir. After that Tohid again attacked Tahir with sword. Tahir ran away from the spot to save himself and was followed by the accused persons. Tahir went towards the crossing and fell down in a tempo, seeing which the accused person. ran away. FIR (Ex. P/8) of the incident was lodged by PW8 Abdul Shakil and the appellants have been convicted after trial.

(3.) SHRI S. C. Datt, learned Senior advocate appearing for the appellants has submitted that there was no prior enmity of the appellants with the deceased and the accused were unarmed when the fight started. In fact the deceased party had attacked first since they had the grudge because accused had stopped their buffaloes from drinking water. He, further submitted that the injuries found on the person of the accused have not been explained and accused also received bleeding injuries which have not been explained. His contention is that it is a case falling under Exception 4 of section 300, i. P. C. and appellants have wrongly been convicted under section 302 of I. P. C.