NOOR MOHAMMAD MOHAMMAD YUSUF MOMIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal by special leave we are only concerned with the conviction of one out of four accused persons jointly tried for the murder of one Mohd. Yahya. The appellant Noor Mohammed Mahamed Yusef Momin, accused No. 4, in the trial Court was jointly tried with three others in the court of the second Additional Sessions Judge, Thana on the following three charges :

(2.) As already indicated, this Court granted special leave only to the appellant who was accused No. 4 in the trial Court.

(3.) Before narrating the prosecution story the inter se relationship of the accused persons may be stated. Abdul Rehman Bacchu Momin, accused No. 3, is the husband of the sister of the appellant Noor Mohammed's wife. Chinwa alias Ahmed Hussan Momin, accused No. 2, is the brother of Kallu, who is the son-in-law of the appellant, accused No. 4. Mohd, Taki, accused No. 1, is the servant of Kallu. All these persons are the residents of the same place and the deceased Mohd. Yahya was a close neighbour of the appellant. According to the prosecution there were constant disputes between the appellant and the deceased over the right of passage and the right to tap water, and it is not disputed that both sides had made reports and counter-reports with the police against each other. The climax reached on April 16, 1965. In the morning at 7 O'clock on that day Mohd. Yahya when going out of his house, found that there was a heap of earth and a cot belonging to the appellant obstructing his way. A cow belonging to the appellant was also standing in the passage. In order to clear his way the deceased picked up a stone and hurled it at the cow. This offended the appellant and he in retaliation threw a glass which he was holding towards the deceased and also abused him. The deceased reported this incident to the police station. The appellant also went to the police station and made a counter-complaint against the deceased. When the deceased and the appellant had gone to the police station the two wives of the appellant abused Jaitunbi, wife of the deceased, with the result that Jaitunbi also went to the police station to lodge a report. But this report was not recorded. A little later, the wives, sisters and children of the appellant again abused Jaitunbi and pelted stones at her. Jaitunbi went to the police station again to lodge a complaint. The same day at about 10 A. M. when the deceased was lying on a cot in his house the appellant came up to the door of the former's house asking him to get down. On enquiry by the deceased as to why he should get down the appellant replied that he would serve the deceased with his last tea. At that time the appellant was accompanied by four or five persons including Chinwa, accused No 2. It is said that all of them abused the deceased. Chinwa, accused No 2, held a knife in his hand which he is stated to have opened by pressing the button and as he tried to enter the house of the deceased, the latter's daughter, Noorjahan, went by the back door to the police station to lodge a complaint. This Part of the story is not admitted by the accused. On Noorjahan's complaint the police came to the spot in a van and after interrogating the persons present the police party took with them accused Nos. 2 and 3. The appellant is stated to have offered to reach the police station himself a little later.