Judgment

SHELAT, J. :- This appeal, by special leave, is directed against the dismissal in limine by the High Court of Bombay of the appeal filed by the appellant against the order of conviction and sentence of life imprisonment passed under S. 302 of the Penal Code, by the Sessions Court, Greater Bombay. The special leave granted by this Court on September 25, 1969 was limited to the question whether the High Court was justified in dismissing the said appeal summarily with only one word for its order, viz., dismissed .

2. The appellant and his brother (orig. accd. 2) Tajuddin were tried by the Additional Sessions Judge, Greater Bombay on a charge under S. 323 read with S. 34 of the Penal Code for causing injuries to P.W. Ibrahim. As part of the same transaction, the appellant was also charged with the offence of murder of one Kadar Shaikh under S. 302.

3. According to the prosecution, at about 8.30 p.m. on November 25, 1967 P.W. Dawood, who at the material time was living with the deceased Kadar and his brother, P.W. Ibrahim, was given first blows by the appellant near a cafe, called Cafe Zam Zam, situate near the Dongri market. The assault, it was said, was the result of a dispute amongst the children and womenfolk of the parties in their native village. Nothing further happened due to the intervention of the deceased Kadar and his having pacified Dawood.

4. The next morning, that is, at about 8.15 a.m., on November 26, 1967, Dawood, the deceased Kadar and his brother Ibrahim stopped near the said cafe on their way to Dongri market. Kadar was having a cup of tea sitting on a bench outside the cafe, Dawood was standing nearby and Ibrahim had gone for a pan at the pan shop outside the cafe. Ibrahim had just come back to where Kadar was having his tea when the appellant and his brother, the said Tajuddin came there and asked Ibrahim as to why he was taking the side of Dawood. Dawood interrupted the appellant saying that he could not understand what the appellant was saying, whereupon the appellant gave two fist blows to Dawood. At this time Ibrahim saw Tajuddin with his three nephews. Apprehensive that they would attack him, Ibrahim rushed to the pan shop to get some weapon. P.W. Jalil, who was making betal leaves ready by cutting them into proper shape, concealed the pair of scissors he had underneath the leaves. Ibrahim had, therefore, to return back to where Kadar and Dawood were without any weapon. The two accused and their nephews thereafter fell upon Ibrahim giving him fist blows. As a result of the attack on him Ibrahim fell down and Tajuddin set upon him and started giving him further fist blows. The deceased Kadar thereupon went up to where Ibrahim was being assaulted and pulled Tajuddin away from Ibrahim. As he was doing so, the appellant drew a knife from his pyjama pocket and struck Kadar with it in his back. Kadar got away from that place, but fell near the said cafe. The appellant and his brother left that place thereafter and P.Ws. Dawood and Ibrahim removed the injured Kadar to the J. J. Hospital in a taxi. A constable at the hospital questioned Ibrahim and noted down his statement in his register to the effect that the appellant had stabbed Kadar. Shortly after his admission in the hospital, Kadar succumbed to the injuries he had received and died. According to Dr. (Miss) Patel who performed the post-mortem examination, Kadar had two punctured injuries, one in the 5th intercostal space, cavity deep and the other in the 9th intercostal space, also cavity deep, each of them being a fatal injury.

5. As aforesaid, the prosecution on these facts charged the appellant and his brother Tajuddin for assault on Ibrahim under S. 323 read with S. 34 and the appellant alone for the murder of Kadar under S. 302. The prosecution relied on the evidence of P.Ws. Dawood, Ibrahim and two others from the pan shop, Jalil and Mahomed Salaru, the medical evidence, and lastly, the evidence as to the discovery by the appellant of a knife f