ALLARAKHA HABIB MEMON ETC Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard.

(2.) The instant criminal appeals have been filed by the appellants namely, Allarakha Habib Memon, Amin @ Lalo Aarifbhai Memon and Mohmedfaruk @ Palak Safibhai Memon, for assailing the common judgment dtd. 18/2/2019, passed by the Division Bench of High Court of Gujarat at Ahmedabad dismissing the Criminal Appeal Nos. 94 of 2015, 450 of 2015 and 563 of 2015, preferred by the accused appellants and affirming the judgment and order dtd. 13/10/2014 passed by the Court of Additional Sessions Judge, Anand, in Sessions Case No. 84 of 2011(hereinafter being referred to as 'trial Court'). The trial Court had convicted the appellants for offence punishable under Sec. 302 read with Sec. 120B of the Indian Penal Code, 1860(hereinafter, referred to as 'IPC') and sentenced them to imprisonment for life with fine of Rs.1,000.00 each, in default whereof, to undergo rigorous imprisonment for a period of three months. At the same time, the appellants were acquitted of the charge for the offence punishable under Sec. 323 IPC.

(3.) The accused appellants are the residents of New Memon Colony, Bhalej Road, Anand. There was some issue regarding the supply of water in the residential blocks where the accused Mohmedfaruk @ Palak was residing. On 3/5/2011, a meeting was convened in this regard wherein, an altercation flared up between the accused Mohmedfaruk @ Palak and Mohammad Sohail. It is alleged that Mohmedfaruk @ Palak hurled abuses and used foul language against Mohammad Sohail, who in turn intimated the society members that he may be relieved from the duty of supplying water in the society. A meeting with respect to the intimation given by Mohammad Sohail was convened by the members of the society, wherein Mohammad Sohail insulted accused Mohmedfaruk @ Palak, who started carrying a grudge against Mohammad Sohail on this account. Resultantly, Mohmedfaruk @ Palak conspired with the accused Amin @ Lalo Aarifbhai Memon and Allarakha Habib Memon and hatched a plan to eliminate Mohammad Sohail. As per the prosecution, acting in furtherance of the above conspiracy, Mohmedfaruk @ Palak collected arms like gupti, daggers etc., and concealed the same in the dicky of his scooter. On 4/5/2011 at around 8:00 pm, Mohammad Sohail, along with his first cousin namely, Mohammad Arif Memon(the first informant), had proceeded to Shah petrol pump on a two wheeler, where they got the vehicle refuelled, and then both proceeded towards their residence, by taking a turn towards Bhalej overbridge. On the way, the accused Mohmedfaruk @ Palak stopped them on the pretext of asking mobile number of one Mohammad Hussain. Taking advantage of the situation, the accused appellants launched an indiscriminate assault upon Mohammad Sohail with sharp edged weapons, causing injuries on his head and chest regions. Mohammad Arif Memon tried to intervene, upon which he was given a push by Mohmedfaruk @ Palak and fell down. Mohmedfaruk @ Palak took out a big knife and inflicted a blow with a sharp weapon on the back of Mohammad Sohail. Upon hearing the noise of the commotion, people from nearby gathered at the place of occurrence whereupon the accused appellants fled away, abandoning their weapons at the crime scene. Mohammad Sohail having been severely injured was shifted to a hospital, where he was declared dead.