AZAD ALI Vs. STATE

JUDGEMENT

(1.) In this appeal we find the appellant were arraingned and subsequently convicted for the charges under Sections 302/34 of the Indian Penal Code. The learned Sessions Judge awarded punishment of life imprisonment (rigorous) and also a fine of Rs. 5,000/- each, in default to suffer rigorous imprisonment for six months more.

(2.) The prosecution story of the case, in short, is as follows :- The victim one Zulfikar Ali along with one Md. Hussain, being the defacto complainant, P.W.1; one Govinda Raju, being P.W.2 and one Abdul Majid, being P.W.3, on the fateful day, i.e., 25/02/1998 at around 9.30 p.m. were all gossiping sitting in front of the shop, namely, Santosh Jewellery at Phoenix Bay, Port Blair. While doing so the victim intended to smoke cigarette, so all the four as above went around 11.30 p.m. to the shop of Azad Ali, appellant No. 1, situated near the house of one Smt. Fathima. Obviouslyu the shop was then closed. The defacto complainant knocked at the door of the shop and called Sazad, being the appellant No. 2 herein who used to stay inside there, to open the shop. None responded to the call of defacto complainant though lights were on inside the shop room. All of them were standing and taking in front of the house of one Fathima at that point of time. After 15 minutes the accused Sazad came out from the rear side of the shop room and on his asking victim told that he had knocked the door of the shop at the late hours of the night for he needed a cigarette. Thus the incident started with exchange of words followed by altercation between these two. Meanwhile, another accusd Azad came out and joined altercation and started abusing Zulfikar Ali for knocking the door of the shop at the late hours of the night, this subsequently turned into scuffle between them. Md. Hussain, P.W.1, Abdul Majid, P.W.3 and Govinda Raju, P.W.2 tried to pacify and separate them. Both the accused persons being infuriated had told that they would do away with Zulfikar (victim) and Sazad then went inside the shop and brought a sword like weapon called 'Dah'. Appellant No. 1 then asked him to finish off victim, and Sazad instantly struck one blow on the left backside of the neck and two blows on the right and left hands of the deceased with the said weapon. The victim then fell down on the ground and started bleeding profusely. Even thereafter Sazad tried to strike again with the Dah, however, he was somehow prevented by the aforesaid P.W.1, P.W.2 and P.W.3. Thereafter Sazad went back to the shop with Dah.

(3.) However it appears from the statement under Section 164 of the Criminal Procedure Code made by P.W.1, P.W.2 and P.W.3 that the victim after having sustained injury as above tried to reach his house which was not far from the place of occurrence. However on his way he fell down near his house on the gravels stacked in front of his house. There the victim was heard saying to his mother that both the accused together assaulted him and he would not survive and soon thereafter he became unconscious. His maternal uncle brought a towel and drapped around injured neck to stop bleeding. Thereafter he was taken to G. B. Pant Hospital at Port Blair.