MAHEBOOBKHAN AZAMKHAN PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal is filed by the Appellant (Accused No. 1) against the judgment and order passed by the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Appeal No. 551 of 2008 with Confirmation Case No. 1 of 2008. By the impugned judgment and order, the High Court has affirmed the judgment and order passed by the Additional Sessions Judge, Parbhani in Sessions Trial No. 46/2006, dated 22.08.2008 and further confirmed the death sentence awarded by the Trial Court. The facts in extenso need not be noticed by us as the same have been comprehensively noted by the courts below. The background of the facts goes to explain the genesis of the incident that took place when the deceased-Vidya Deshmukh and her family members, after having their dinner, retired to bed. On the fateful day, at about 3.00 am-3.15 am, the Appellant-Maheboobkhan along with others barged into the house of the deceased with the intention of committing theft and robbery and threatened the father of the deceased (PW-2), the mother of the deceased (PW-3) and the uncle of the deceased (PW-15), at the point of their knife not to raise any alarm and thereafter tied their hands with the help of a piece of sari. The Appellant, while ransacking the house, snatched the mangalasutra and the golden ear-rings of PW-3, and thereafter attempted to remove the golden ear rings of the deceased. Upon resistance, the Appellant assaulted the deceased by biting her on her cheek and lips followed by nine to ten successive blows of knife which resulted in the death of the deceased. The Pw-2, in the meanwhile, could extricate his hands and hired an auto-rickshaw to lake the deceased to the Civil Hospital, Parbhani, for treatment where the medical officer confirmed that the deceased had succumbed to her injuries. The PW-2, PW-3 and PW-15, the eye-witnesses to the incident, were also present at the hospital and it is there that they described the accused persons and an album containing the photographs of the accused was thus prepared. The Pw-2, thereafter lodged a complaint and on the basis of the said complaint, offence was registered under Section 397, 460, 302 and 354 read with 34 of the Indian Penal Code, 1860.("the Indian Penal Code for short).

(2.) After the completion of the investigation, the Appellant was charge-sheeted for the above-mentioned offences. The Trial Court taking into consideration the evidence of the eye-witnesses has come to the conclusion that their testimony cannot be disbelieved as they have correctly identified the Appellant from an album containing 30 to 40 photographs of different accused. On the basis of the above finding, the Trial Court convicted the Appellant for offence punishable under Section 302, 460, 397 and 354 of the Indian Penal Code and awarded the death sentence to the Appellant.

(3.) Being aggrieved by the aforesaid conviction and sentence passed by the Trial Court, the Appellant has appealed before the High Court. The High Court vide its judgment and order dated 04.12.2008 has confirmed the death sentence so passed by the Trial Court being of the view that the heinous crime committed by the Appellant falls into the category of rarest of rare cases. It is the correctness or otherwise of the judgment and order passed by the Courts below which is called in question by the Appellant in this appeal.