Judgment-

OZA

( 1 ) THIS appeal has been filed after obtaining leave from this court against the conviction of the appellant under S. 302 and sentence of imprisonment for life recorded by Additional. Sessions judge Greater Bombay in Sessions Case No. 204/73 and maintained on appeal by High court of Bombay by its judgment dated 17/10/1977.

( 2 ) THE prosecution case at the trial was that on the midnight intervening between July 25/26, 1972 the appellant along with others went to traffic island near Bandra, situated on Linking Road where badshah Umarbax was doing the business of vending eatables from his handcart kept on that island. The eatables included heavy non-vegetarian items. Badshah, Public Witness 4 was assisted in his trade by his brother-in-law Sadatali, Public Witness 5 and some other servants. It is alleged that the appellant alongwith his friends had reached there to celebrate the victory of caroms game of the Caroms Club run by accused 1 and on reaching near the cart accused 1 and 4 placed order for meat and other preparations.

( 3 ) AS the dishes were getting ready the deceased Sheroo Lala came there, driving his red Fiat car MRT 566. By his side was his relation Ahmedkhan, who, though cited as a witness, was not examined at the trial, as it was reported that he was not available. In the back seat sat Chutkan, Public Witness 2 and Alikhan, Public Witness 3. It appears that chutkan and Kala Topi met in a hotel in Khar and while they were conversing, Sheroo Lala came there together with Alikhan in the car from Santa Cruz side. After gossipping for some time Sheroo Lala proposed to go to Badshahs handcart on Linking Road, for taking food. That is how all of them arrived near the Badshahs handcart where the appellant and his friends had reached earlier. This car went and stopped very near the handcart. The other cars which brought the appellant and his friends earlier were parked there. It was at 11. 45 p. m. and there were two petromax lights burning on the handcart. There were also some street lights. It is alleged that sheroo Lala got down from his car and proceeded for placing the order and just as he did so he was stopped by Maruti, one of the accused persons who addressed him in a loud tone. This was followed by heated exchange of words and suddenly the present appellant -- accused 1 in the courts below who was behind Maruti came forward with an open Rampuri knife and inflicted a stab wound in the stomach of Sheroo. The other accused also assaulted Sheroo Lala with a stick on the head. The other persons who were tried, it is alleged were also there. It is alleged that in the meantime Chutkan, Kala Topi and Ahmedkhan had come near the spot where Sheroo was stabbedand Sheroo keeping his hand on the injury walked towards the north and ultimately fell down in a pool of blood collected on the spot. Chutkan, Kala Topi and Ahmedkhan, it is alleged, got down from the car probably to meet the assailants but just then Maruti who was accused 3 in the courts below, picked up a suri from Badshahs handcart and aimed a blow at Chutkan but Chutkan grappled with it and got hurt near the thumb on the palm of his right hand. Another blow was aimed by Maruti, but it was warded off by Chutkan and it is alleged that at that time accused 4 gave a blow with a bamboo on the right hand of Chutkan and accused 7 gave a blow on ahmedkhan with an iron bar. Ahmedkhan fell down and sometime later he went away himself. It is alleged that when this was happening, kala Topi removed a bamboo from Badshahs handcart and started flourishing it in defence. The others also were doing something to defend themselves. According to the prosecution in this exchange some injuries were inflicted but so far as the present appeal is concerned, we are not concerned with it as we are concerned with only the appellant Ramesh Laxman Pardesi.

( 4 ) CHUTKAN and Kala Topi, in the meantime, managed to board a taxi and went to K. E, M. Hospital for treatment. They reache