Judgment

DUA, J. :- The appellant in this appeal by special leave (accused no. 1 in the trial Court) was convicted by the Second Additional Sessions Judge of Thana of offences under Ss. 148, 323 and 302, I.P.C. and was sentenced to death under S. 302 and to various terms of rigorous imprisonment under Ss. 148 and 323 of the said Code. The High Court maintained his conviction and confirmed the sentence of death. He has now appealed to this Court and Shri. Dholakia, learned counsel appearing in support of this appeal has addressed lengthy arguments challenging both the conviction and the sentence.

2. This case is an off-shot of the unfortunate communal riots which occurred on May 7, 1970 in the town of Bhiwandi in Thana District in the State of Maharashtra. Though the trouble originally started in the town of Bhiwandi it spread to the neighbouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil ged about 55 years along with his family members. This was the only Muslim family in Thakurpada. He and his wife Sahebi had ten children. Their names and ages in the order of seniority are: Shaukat (son) about 23 years, Shamsuddin (son) (who has appeared as (P. W. 1) about 19 years, Kasam (son) about 17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam (son) about 11, Fatma (daughter) about 9, Hamshera (daughter) about 4, Salim (son) about 3 and Nazar (son about 4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all three used to work in Neviation Company at Mohila about 21/2 miles away from Tansa. Abdul Khalil was a truck driver and Shaukat, a cleaner. As communal trouble spread to other places in the district, some danger to the Muslim families in Tansa village was also apprehended. In that village there were perhaps about 5 or 6 Muslim families. On the outskirts of this village there is the great Tansa lake which supplied water to Bombay city. Mr. Khatkhate, a Hydraulic Engineer is in charge of that Lake. He has an office on the site with several employees of the Municipal Corporation of Bombay Working under him living on the site. Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned him that there was a likelihood that he and the members of his family might be attacked and that they should leave Tansa village and go to a safer place. As a result of this warning, Abdul Khalil and the members of his family abandoned their home and left Tansa village at about 6 p. m. on May 12, 1970. They went into the forest area surrounding the great Tansa lake and encamped on a hillock known as Maholi hillock about 21/2 miles away from the village. They spent the night at the hillock but having run short of water in the morning they shifted at about 10 a. m. on May 13, 1970 to the Nursery area of Tansa lake which is near the water s edge. This spot was about three or four furlongs away from Tansa village. They spent most of the day there. In the evening at about 6 or 6.30 Shamsuddin, the second son, went a little distance away from the family members to ease himself, when he saw a mob of about 30 or 35 persons armed with axes, spears and sticks coming from the side of the Tansa lake towards the place where Abdul Khalil and his family were staying. Seeing the mob approaching them Shamsuddin ran back to his parents and informed them about what he had seen. The mob was raising shouts. The members of Abdul Khalil s family feeling frightened started running in different directions. They roughly formed themselves into three groups. One group consisted of Kasam, Hanif, Nizam, Salim and Hashma, the other consisted of Jubeda, Fatma and their mother Sahebi who was also carrying in her arms the baby Nazir and the third group which was the last to leave the spot consisted of Khalil and Shaukat. As these two persons were the last to leave the spot the mob had in the meantime comes close to them. They thus become the first target of the attack by the mob. The appellant, Dharma Rama Bhagare, who was armed with a bow a