Ejazhusen Sabadarhusen . vs State Of Gujarat

2. On dismissal of appeal upholding conviction under Section 302 read with Section 34 IPC, accused nos. 1 and 2 have not challenged their conviction and sentence and accused nos. 3 and 4(present appellants) have approached this Court assailing the 1 said judgment and conviction under Section 302 read with Section 34 IPC.

3. The brief facts necessary for disposal of the appeal are as follows:

4. It may be relevant to note that for the self­same incident happened around 11.00 a.m. in the morning of 18 th August, 1997, accused no. 1 Iftekharhussain Sabdarhussain also made a cross complaint that he was residing at House No. 521/4/5 in a small chawl(street) of Saudagar, in Jamalpur area and the present complainant party was living in front of his house and the families are known to each other. On 18 th August, 1997 at eleven o’ clock in the morning, he was in the bathroom and he had kept the tap on, as his house was to be cleaned. Mohammad Shakil (deceased) came at his house and told him to turn the tap of water off. Accused no. 1 Iftekharhussain Sabdarhussain told to do the same after the cleaning work would finish as he was cleaning his house and not possible for him to off the tap. The members of the complaint party started using abusive language and attacked on him and becoming very excited. He also got excited and used abusive words, then three of them had beaten him with punch and kick and Mohammad Shakil(deceased) had beaten him by pipe blow on the back side by coming from behind. The nearby people had also come. Thereafter, his brother 4 Shefakathussain took him to Police Station by rescuing him where he lodged his complaint which was registered at 12.10 p.m. In his complaint, he has not recorded the presence of accused nos. 3 & 4(present appellants) when the alleged incident took place on 18th August, 1997. The complaint of which the cognizance was taken for the offence under Section 302 & 307 read with Section 34 IPC was registered at 2.00 p.m. after the complaint of the accused no. 1 Iftekharhussain Sabdarhussain on which the FIR was registered at the instance of the accused no.1 at 12.10 p.m. and after investigation charge­ sheet came to be filed against members of the complainant party.

5. All the four accused faced trial and held guilty on the ocular evidence of PWs 1,2,3 & 4 who are the family members of deceased Mohammad Shakil. No independent witness was examined by the prosecution despite the fact it was a holiday and members reside in the adjacent flats as well. Indisputedly, there is no recovery from the present accused appellants and their clothes were also not recovered in the course of investigation. After the trial, all the four accused persons were held guilty under Section 302 read with Section 34 IPC and the appeal preferred against their conviction and sentence was also 5 dismissed by the High Court under the impugned judgment dated 29th February, 2008.

18. It has come on record that there was a long pending civil dispute in reference to a flat nearby between the parties and other families were residing in the housing colony and between 11.00 a.m. and 11.15 a.m. in the morning of 18 th August, 1997, when the altercation took place between accused no. 1 Iftekharhussain Sabdarhussain and deceased Mohammad Shakil because of the supply of water, both parties started abusing each other. Accused no. 1 Iftekharhussain Sabdarhussain was also 15 injured in the alleged incident and he also reported his complaint at 12.10 p.m. on which FIR was registered and after investigation, charge­sheet was filed. Although after the trial, the complainant party was acquitted vide judgment dated 18 th August, 1999. Accused no. 1 Iftekharhussain Sabdarhussain in his complaint recorded the presence of his brother(accused no.2 Shefakathussain Sabdarhussain). The complaint on which the FIR was registered at the instance of complainant Shamimbanu (PW­1), wife of the deceased Mohammad Shakil was at 2.00 p.m., apart from the presence of accused nos. 1 Iftekharhussain Sabdarhussain & accused no. 2 Shefakathussain Sabdarhussain, the names of accused no. 3 & 4(present appellants) were also added but no overt act have been attributed to the present appellants and their presence could be recorded with an allegation that both of them caught hold of the deceased Mohammad Shakil having common intention in facilitating the other accused persons to stab the deceased Mohammad Shakil by knife and gupti who have been convicted with the present accused appellants under Section 302 read with Section 34 IPC.

24. The appeal is accordingly allowed and the impugned judgment of the High Court qua the appellants is set aside and since the appellants are already on bail, their bail bonds stand discharged.