ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1 By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, `the Code, 1973’), the appellant - accused No.1 – Osman Umar Sama has challenged the judgment and order dated 01.07.2014 passed by the learned Additional Sessions Judge, Bhuj-Kachchh in Sessions Case No.52 of 2011 below Exh.122, whereby the learned Additional Sessions Judge convicted the present appellant for the offence punishable under Section 302 of the IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.2,000/-, and in default to further undergo 2 months simple imprisonment.

2 In Sessions Case No.52 of 2011, the learned Additional Sessions Judge tried, in all, five accused persons. The learned Additional sessions Judge at the end of the trial, convicted original accused Nos.2 and 3 for the offence punishable under Section 324 of IPC and imposed a fine of Rs.5,000/- and convicted accused Nos.4 and 5 for the offence punishable under Section 323 of the IPC and imposed a fine of Rs.1,000/-. The accused Nos.2 to 5 have paid the amount of fine imposed upon them and they did not challenge the order of their conviction under Sections 324 and 323 of the IPC respectively and the present appellant only has preferred the present appeal challenging his conviction under Section 302 of the IPC.

3 Brief facts leading to filing of the present appeal are stated as under:

3.1 There were cross complaints being CR No.I- 57 of 2011 and CR No.I-58 of 2011. The judgment under challenge in Sessions Case No.52 of 2011 arises out of complaint being CR No. I-57 of 2011 registered on 04.04.2011 at Bhuj City Police Station for the offences punishable under Sections 147, 148, 149, 323, 326, 307, 302 and 504 of the IPC and under Section 135 of the Bombay Police Act. The said complaint was filed by Noormamad Umar Sama wherein it was stated that on 04.04.2011 lunch was hosted on account of marriage of one Majid and while the complainant was going for lunch along with his sons Jabbar, Ishaq and Ismail and nephew Aziz Kasam Sama, on the way he found the present appellant standing with his old Maruti fronti car and was accompanied by Amin Latif Sama, Sattar Jiya Sama, Junas Musa Sama and one unidentified person, who had worn blue colour clothes. Out of those persons, the present appellant abused son of the complainant Jabbar and inflicted knife blow upon Aziz Kasam Sama on his back. Amin Latif Sama also stabbed his son Jabbar on the back, neck and hand. Sattar Jiya Sama stabbed his son Ishaq on the back and on the left side of the body in the rib cage and remaining two persons also beaten up all of them. During the quarrel, nephew of the complainant Aziz and his two sons sustained serious injuries, and therefore, the complainant and his other son Ismail and another nephew Akbar Haji took them to hospital. During the treatment, nephew of the complainant Aziz succumbed to the injury and expired and two sons of the complainant viz. Jabbar and Ishaq sustained serious injuries. As per the complaint, the reason behind the quarrel was that before ten days of the incident, the present appellant had beaten nephew of the complainant Hussain Kamal, and therefore, keeping grudge in mind the assailants formed unlawful assembly and stabbed sons of the complainant and stabbed to death nephew of the complainant – Aziz Kasam Sama.

3.2 As can be seen from the record, on the same day i.e. on 04.04.2011 FIR being CR No.I-58 of 2011 was also lodged by the present appellant Osman Umar Sama for the offences punishable under Sections 147, 148, 149, 324, 506(2) of the IPC wherein it was stated that the present appellant had come for dinner in Maruti Fronti car and after parking the car, he went for lunch and after completion of lunch at around 12:30 when he was washing his hands outside the Jamatkhana at that time Ismail Sama (son of the complainant) abused him and asked that why he was throwing water on