- (1.) THROUGH this appeal, the appellants challenge the judgment and order dated 1-8-1996 passed by the Additional Sessions Judge, Malegaon in Sessions Case No. 48 of 1994 whereby they have been convicted and sentenced in the manner stated hereinafter:--- (i) Under section 143 r/w section 149 I. P. C. to suffer 3 months R. I. and to pay a fine of Rs. 100/- each in default to suffer one month R. I. ; (ii) Under section 147 r/w section 149 I. P. C. to suffer 1 year R. I. and a fine of Rs. 200/- each, in default to suffer R. I. for 2 months; (iii) Under section 302 r/w section 149 I. P. C. to suffer imprisonment for life and to pay a fine of Rs. 2000/- each in default to suffer 6 months R. I. In addition, the appellant-Asadbin has been convicted for offences punishable under section 148 r/w 149 I. P. C. and 307 I. P. C. On the former count, he has been sentenced to undergo 1? years R. I. and to pay a fine of Rs. 500/- in default to undergo 3 months R. I. and on the latter, 7 years R. I. and to pay a fine of Rs. 1000/- in default to suffer R. I. for 3 months. The substantive sentences of the appellants have been ordered to run concurrently.
(2.) SHORTLY stated the prosecution case runs as under:--- The informant Sayeed Ahmed Mohammed Hanif P. W. 1 was the real brother of the deceased Rafiq Ahmed. They had a brother Nasir Ahmed who at the time of the incident had two shops called Indore Motor Parts and Deluxe Auto-Electricals, situated at Manmad square, Malegaon. The said shops were managed by the informant, his brother Nasir Ahmed and Abdul Majid Mohammed Hanif. They had employed one servant called Akhtar Khan Pathan P. W. 5. Near the shops, there was a garage called Baba Motor garage which belonged to the appellants, juvenile accused Sabirbin and Talibin. The said garage was engaged in repairs of vehicles of Tata make. On 16-2-1994, at about 4 p. m. one ambassador car came to Deluxe garage. Akhtar Pathan P. W. 5 was asked to locate the fault. The deceased Rafiq was not present at the garage at that time. While he was repairing the water pump of the car, co-accused Talib and Sabirbin accompanied by the appellants Khalikbin and Galibbin came. They started saying that they would repair the car. There was an exchange of blows between Nasir and Majid on one hand and Talib on the other. The police arrived and picked all three of them. Thereafter, the deceased Rafiq came and Akhtar Pathan P. W. 5 disclosed as to what had happened to him. At about 6/6. 30 p. m. the informant Sayeed came in the garage. On seeing Sayeed, the appellants Talib, Sabir and one unknown person started abusing them. Thereupon, the appellants along with Sabirbin and one unknown person came towards Deluxe garage. The appellant-Khalikbin and Sabir caught hold of the informant Sayeed. The unknown person and the appellant Galibbin caught hold of the informants brother Rafiq Ahmed. In the meantime, the appellant-Asadbin took out a knife from his pocket and started inflicting blows on the person of Rafiq with the same and when the informant rushed to his brothers rescue, the appellant Asadbin dealt a knife blow on his stomach. On receiving the injuries. Rafiq fell down on the spot. Thereafter, the appellants and others ran away. Apart from Sayeed P. W. 1, this incident was seen by Babulal Mahajan P. W. 2 and Akhtar Pathan P. W. 5. The informant chased the appellants and others but, could not apprehend them. The informant hired a auto-rickshaw of one Sanjay Mohite P. W. 3 and on the same proceeded along with Rafiq to N. N. Wadia Hospital, Malegaon.
(3.) THE evidence of Dr. Bharat Wagh P. W. 6 shows that on 16-2-1994, at 6. 45 p. m. while he was working as Medical Officer at N. N. Wadia Hospital, Malegaon an injured who gave his name as Sayeed Mohammed Hanif and who gave history of assault came. On examining him, he found that he had a stab wound on left lumbar region on lateral aspect, 1 "in length at level of umbilicus. It was obliquely placed and penetrating in abdomen. In his substantive evidence, Dr. Wagh stated that the injury was fresh, grievous in nature and attributable to a hard and sharp weapon. Dr. Wagh also stated that the said injury was possible by a knife and had the victim not been treated, death was certain. At 7 p. m. Dr. Wagh examined Rafiq and found him to be dead. After examining Sayeed and Rafiq, Dr. Wagh informed Killa Police Station.;