Hon'ble Judges/Coram:
B.A. Masodkar and R.L. Aggarwal

JUDGMENT

B.A. Masodkar, J.

1.These four appellants question their convictions under section 302, 326 and 506 of the Indian Penal Code as far as accused No. 1 Nabi is concerned, with the aid of section 34 under sections 302 and 326 and section 506 of the Indian Penal Code as far as accused No. 2 Imtiaz is concerned and further with the aid of section 109 for the offences under sections 302 and 326 of the Indian Penal Code as far as accused No. 3 Nanhe and accused No. 4 Mohomed are concerned.

2. The additional Sessions Judge, Bombay, who tried these accused, recorded these convictions arising out of the prosecution case that during the night between November 12 and November 13, 1973, these four accused were involved in an incident that took place in Tosa Bakery situated in Vijaywadi Lane, Girgaum, Bombay. At Exhibit 4 is the map that delineates the locale of the place of the occurrence. The prosecution alleged that one Nissar Ahmed (P.W. 4) was working as a mistry, while Sorab Irani (P.W. 5) was doing supervisory work in Tosa Bakery. Accused Nos. 2 and 3 were working in a nearby bakery called Orient Bakery, while accused Nos. 1 and 4 were on visiting terms with them. It was suggested by the prosecution that sometime before the date of the incident, one Jabarali left Bombay and entrusted his work of distribution of breads to accused No. 2. Accused No. 2 in the course of the work was required to collect breads from Tosa Bakery and it was suggested that during the absence of Jabarali accused No. 2 collected breads but did not pay for the same and it was Jabarali who had to pay the amount of Tosa Bakery. Again, when Jabarali left in October 1973 for his native place, he did not entrust the work to accused No. 2, but entrusted the work to P.W. 4 Nissar Ahmed who had engaged two persons by name Noorali and Rahmatali to look after the work of Jabarali. This is said to be the spark providing for the eventual violence. Whatever may be the history earlier, what happened on the relevant date, that is on the night between Nov. 12 and 13, 1973, is that as Nissar Ahmed had finished his work and was resting on a cot in the verandah of Tosa Bakery, all the accused came and out of them accused Nos. 1 and 2 stood on the road and gave a call to Nissar Ahmed to come out. As Nissar Ahmed woke up and went near the steps of the verandah, accused No. 1 questioned him about his dispute obviously with regard to jabarali entrusting the work of distribution of breads and further threatened that unless the dispute was settled then and there, they would not leave the place. Nissar Ahmed denied to have any dispute and suggested that if at all there was any such dispute, they should come the next day in the morning. Upon this, it was alleged, accused Nos. 1 and 2 took out knives which the prosecution suggests are the same as articles 9 and 10. As soon as the knives were taken out, both the accused rushed at Nissar Ahmed but Nissar Ahmed retraced himself and went inside the bakery shouting by the name of Mohomed Halim (P.W. 3). Mohomed Halim who was sleeping in the bakery woke up and came out and saw accused Nos. 1 and armed with knives. He, apprehending a fatal assault, picked up an iron bar and dealt a blow on the head of accused No. 2 Imtiaz. Accused No. 2 held the iron bar after the receipt of the blow and just at the time accused No. 1 Nabi stabbed Halim on the right side of his chest by means of ........