AYYUB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Original accused 1 to 4, 6, 12 to 14 and 23 are the appellants. They along with 14 others were tried for offences punishable under S. 147, 148, 342/149, 225/149, 224, 302 and 302 read with 34, 109 and 149 Indian Penal Code. The trial court acquitted 14 others and convicted A-1, Sk. Ayyub under Section 302 Indian Penal Code and sentenced him to death and convicted other appellants under S. 302/149 Indian Penal Code and sentenced them to imprisonment for life and to pay a fine of Rs. 200. 00 each in default of payment of which to undergo R1 for three months. They were also convicted under Section 147 Indian Penal Code and sentenced to undergo Rl for two years and to pay a fine of Rs. 200. 00 each in default of payment of which to undergo Rl for three months. The appeals preferred by them were dismissed by the High court. Hence the present appeals.

(2.) The prosecution case is as under. Most of the accused are the residents of Village Naigaon, Taluka Babhulgaon, District Yavatmal and some of them are from the neighbouring villages. On 6/6/1990 Chandabai Kambale, Public Witness 4, who is the resident of the same village was in her house which is near the house of A-1. A-1 came to her house fully drunk and tried to molest her. He started abusing her in filthy language. Public Witness 4 rescued herself and came into the open courtyard of her house and A-1 went away abusing her loudly. Subhash Kambale, the husband of Public Witness 4 came a little later and she narrated the incident to him and he asked her to go and give a report to the police. Public Witness 4 accordingly went and narrated the incident to the police and gave a report Ex. P-148 recorded by Public Witness 18, a Head Constable. Shri Deshmukh, Police Sub-Inspector, deceased 1 along with two Head Constables PWs 3 and 7 and one Police Constable Shri Ramchandra Ingole, deceased 2, left the police station and reached Village Naigaon in an auto-rickshaw driven by Public Witness 5 and got down near the school. On seeing A-l, Shri Deshmukh, deceased 1 told him to accompany him as he was charged under Section 151 Criminal Procedure Code on the report of Public Witness 4. A-1 was reluctant to accompany the policemen. However, they caught A-l and made him sit on the passenger seat in the auto-rickshaw. At that time A-22, Afasanabi, the wife of A-1, came in front of the auto-rickshaw and asked Shri Deshmukh as to why her husband was being taken away. At that time there was a marriage in the house of A-17 and a number of persons had gathered in the marriage. A-22 told the persons gathered there that her husband was being taken away by police withoutany reason on the basis of a report given by a prostitute. A-2, A-17 and A-23 started running behind the auto-rickshaw pelting stones. A-11 was coming in the opposite direction and was driving his harrow. Seeing the mob behind the auto-rickshaw, he put the harrow on the road as an obstacle and the auto-rickshaw was stopped near the tamarind tree. Deceased I PSI, Shri Deshmukh and deceased 2, Police Constable Shri Ramchandra Ingole got down from the auto-rickshaw. A-1 was taken away from the auto-rickshaw by the accused persons. The two head constables were caught by four accused. A-2 went near deceased 1 and told him not to take his brother A-1 and the deceased I told that A-l is arrested under Section 151 Criminal Procedure Code and that he would be released on bail from the Tehsil Office, Babhulgaon. All of a sudden, A-3 caught the waist of deceased I from backside and A-23 caught his right hand. A-1 who was taken away from the auto-rickshaw immediately rushed towards deceased 1 and asked him why he was being taken away on the report of a prostitute. A-1 snatched the revolver from the holster of deceased 1. At that time deceased 2 came near deceased I in order to rescue him. It is alleged that A-1 fired one shot which hit deceased 2 and he fell down and A-1 fired a second shot against deceased 1 and he missed and it hit A-23. A-1 fired a third shot which hit on the head of deceased 1. He also fell down. Thereafter releasing the two head constables, PWs 3 and 7 the accused ran away towards Village Naigaon. Public Witness 7 asked Public Witness 3 to go to the police station to lodge a report and accordingly a report was given. A-23 who was hurt along with his relatives also reached the police station. The doctor, who examined deceased I, declared him to be dead. Public Witness 21, the Circle Police Inspector received a wireless message at about 4 p. m. , reached the village with a posse of constables at about 4.50 p. m. and took over the investigation. He held the inquest over the dead bodies and sent the same for post-mortem. He examined PWs 3, 7 and other witnesses and arrested some of the accused. He also seized some empty cartridges and after completion of the investigation, the charge-sheet was laid.

(3.) The prosecution examined PWs 3, 5, 6 and 7 as eyewitnesses. The accused denied the offence and pleaded that in order to control the unruly mob, deceased I fired bullets and one of them hit A-23 and another hit deceased 2, the police constable and being afraid deceased I committed suicide by shooting himself in the head. The trial court convicted A-1 under Section 302 Indian Penal Code holding that he caused the death of the two deceased persons and convicted the remaining appellants on the ground that they held the deceased and facilitated the commission of the offence by A-l and thus they were liable under S. 302/149 Indian Penal Code. On the question of sentence, the trial court held that the case of A-1 comes under the category of rarest of rare cases and accordingly sentenced him to death and sentenced other accused to imprisonment for life as already mentioned. The sentence of death awarded against A-1 was referred for confirmation by the High court and the State also filed an appeal for enhancement of sentence of accused 2, 3, 14 and 23 and the convicted accused preferred separate appeal. The High court confirmed the death sentence and dismissed other appeals by a common judgment.