YUSUF MUSA CHAUHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave has been filed by the convicted accused against the common judgment and order passed by the High Court of Bombay in criminal Appeal Nos. 938 and 939 of 1978. Cr. A. No. 938/78 was filed by accused Nos. 1 and 2 and Cr. A. No. 939/78 was filed by accused Nos. 3 to 6. The High Court dismissed both the appeals and confirmed the conviction and sentence recorded by the court of Sessions, Greater Bombay. Cr. A. No. 887/79 filed by accused Nos. 7 and 8 was allowed and they have been acquitted. Appellant No. 6 (accused No. 6) died during the pendency of this. appeal.

(2.) Harbhajan Singh alias Bodha for whose murder the appellants have been convicted was-residing at Arthur Villa situated at a distance of about 20 feet from the junction of Gaothan lane No. 1 and Swami Vivekanand road (S. V. Road). S. V. Road is the main road running through Andheri, a suburb of Bombay, and Gaothan lane Nos. 1, 2 and 3 are its lanes. Gaothan lane No. 2 where accused Nos. 1, 3, 4, 6 and acquitted accused nos. 7 and 8 were residing is about 30 feet away from Gaothan lane No. 1. Gaothan lane No. 3 wherein accused Nos. 2 and 5 were residing is little ahead of Gaothan lane no. 2. Bodha was residing with his widowed mother Surjit Kaur and five brothers, namely, (1) Sukhwinder Singh, (2) Rajinder Singh, (3) harbinder Singh, (4) Jitender Singh and (5) surender Singh. Bodha had a friend named afzal, who was earlier residing in Arthur Villa but later on shifted to Varsova, a nearby suburb.

(3.) On 22.4.1977, at about 7 P. M. Afzal left his house at Varsova and went to Andheri to meet his married sister. Then at about 9 p. M. he went to Golden Gate Restaurant situated on S. V. Road. Bodha met him there. They remained there till some time before 11 p. M. As Afzal wanted to catch the last bus leaving Andheri for Varsova at about 11. 05 p. M. , they left the restaurant and came near the bus stop which was in between Gaothan lanes No" 1 and 2 on S. V. Road. Afzal stopped at the bus stop and Bodha proceeded further towards his house. When he reached near the junction of S. V. Road and gaothan lane No. 1, he was attacked by a crowd of about 10 to 12 persons, including the 8 accused and some injuries were caused to him. Afzal saw the assault on his friend and ran to his rescue. On seeing Afzal approaching them the assailants turned their attention towards Afzal and assaulted him with the weapons which they were carrying. Afzal received number of injuries, became giddy and fell down in the nearby gutter. Meanwhile, bodha started running towards his house. Accused-appellants Nos. 1 to 6 ran after him. Appellant No. 1 had an open knife in his hand and appellant No. 2 was armed with a big iron 'zara' (a utensil with many holes, ordinarily used by cooks and confectioners). Bodha pushed open the front door of his house, crossed the first room, went into the second room and while he was trying to open the door of kitchen, appellants Nos. 1 and 2 who had followed him right inside his house, assaulted him again. Appellant No. 1 gave a knife blow on the chest of Bodha and appellant No. 2 gave a 'zara' blow on his head. The two appellants then ran away from there. Bodha fell down at that very spot as a result of the injuries received by him. Appellant Nos. 3 and 6 who had also chased bodha did not enter the house but remained standing outside abusing Bodha and uttering threats. When Kuldip Kaur, sister of Bodha and Rajinder Singh went near the door, appellant No. 6 asked them to bring Bodha out as he wanted to take revenge as Bodha had some days before the date of the incident beaten them. On Kuldip Kaur informing them that Bodha had received serious injuries and had become unconscious, appellant Nos. 3 to 6 also ran away. Seeing the serious condition of her son, Surjit Kaur sent her younger son Surender Singh to call her brother Harbans singh who was residing close by. Harbans singh on being informed about the incident immediately contacted the police control room. The control room informed the mobile police van moving in that area. P. S. I. Nanaware who was the incharge of the mobile van reached Arthur Villa within 5 to 6 minutes. Finding the condition of Bodha serious, he removed Bodha with some of his family members in the van to Cooper hospital. The doctor who examined Bodha found him dead. So he informed police constable Kadam who was on duty about Bodha's death. Constable kadam sent a telephone message to Andheri police Station. Within a short time the investigation started. Accused Nos. 3 to 6 were taken into custody at about 5 A. M. Accused nos. 1 and 2 were arrested on 24.4.1977 and Accused Nos. 7 and 8 were arrested on may 5, 1977.