Judgment

DUA, J :- 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 :

"That you accused Nos. 1 to 4 on or about the 16th day of April, 1965 at Bhiwandi entered into an agreement to commit the murder of Mohamed Yahya and that the same illegal act was done in pursuance of the said agreement and thereby you committed an offence punishable under S. 120B of the Indian Penal Code and within my cognizance.

That you accused Nos. 1, 2 and 3 on or about the 17th day of April, 1965 at about 11 p.m. at Bhiwandi in furtherance of common intention of you all and accused No. 4 to commit the murder of the deceased Mohamed Yahya did commit his murder by intentionally causing his death by assaulting him by knife and thereby committed an offence punishable under S. 302 read with Section 34 of the Indian Penal Code and within my cognizance.

In the alternative you accused No. 4 on 17th of April, 1965 at Bhiwandi abetted the commission of the offence of murder of Mohamed Yahya by accused Nos. 1 to 3 which offence was committed in consequence of your abetment and that you thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code and within my cognizance. The trial Court convicted Mohd Taki Haji Hussein Momin, accused No. 1 under Section 302, I.P.C. and sentenced him to imprisonment for life. He was acquitted of the other charges. His three co-accused were acquitted of all the charges. Accused No 1 appealed to the Bombay High Court against his conviction whereas the State appealed against the acquittal of the other three. The High Court, after considering the evidence on the record, upheld the conviction of accused No. 1 and reversed the order of acquittal of the other three. Accused Nos. 2, 3 and 4 (Chinwa alias Ahamed Hussan Momin, Abdul Rahamen Bacchu Momin, and Nur Mohamed Mahamed Yusef Momin respectively) were held guilty of the offence under Section 120-B, I. P. C. as also of the offense under Section 302, read with Section 34, I. P. C Accused No. 4 was in addition held guilty of the offence under Section 302 read with Section 109, I. P. C Accused Nos. 2, 3 and 4 were sentenced to imprisonment for life both under Section 120-B, I. P. C. and Section 302 read with Section 34, I. P. C. Accused No. 4, appellant in this Court, was also separately sentenced to imprisonment for life for the offence under Section 302 read with Section 109, I. P. C. Incidentally it may be mentioned that Jaitunbi, widow of the deceased Mohd. Yahya, had also appealed to the Bombay High Court challenging the acquittal of accused Nos. 2, 3 and 4 on all charges and of accused No. 1 on the charges other than that of murder under Section 302, I. P. C. This appeal which was treated as an application under Section 417 (3), Criminal P. C. was held not to be maintainable.

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