SHAIKH UMAR AHMED SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This criminal appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA), at the instance of two appellants herein, viz., Shaikh Umar Ahmed Shaikh and Mohd. Naim Mohd. Yasin Qureshi, is directed against the judgment and order dated 14-10-97 passed by the Designated Court, Greater Bombay, Maharashtra in TADA Special Case No. 21 of 1994, whereby the Designated Court has convicted the two appellants under Section 3(2)(i) of TADA read with Section 149, I.P.C. and sentenced them to undergo life imprisonment. The appellants have also been convicted and sentenced to life imprisonment for the offence punishable under Sections 302/149, I.P.C. and sentenced to pay a fine of Rs. 500/- each, in default to suffer R.I. for six months. Both the substantive sentences were directed to run concurrently.

(2.) Prosecution story in brief is, that on 7-12-92, the area where J.J. Hospital is situated was in the grip of communal riots as a result of which prohibitory orders were promulgated. In Ward No. 46 of the said hospital where undertrial of various criminal cases were usually kept for medical treatment, a police escort consisting of one Head Constable and three constables was being provided there from the police headquarters. Head Constable Chandrakant Pamji Khopkar (Buckle No. 17581) was in charge of the police escort of Ward No. 46 of the said hospital. Police constable S.P. Shinde (Buckle No. 27252), Police constable Rahul Hanumant Gaikwad (Buckle No. 414) and the third Police constable (Buckle No. 27231) were on duty at Ward No. 46 along with Head Constable Khopkar. At around 7.30 p.m., on the said day, when the next batch of police escort party arrived at the ward, Head Constable Khopkar handed over the charge to the next batch, and took out the uniform shirt and wore a red coloured shirt. So also Police constables Shinde and Gaikwad changed their uniforms. Thereafter Head Constable Khopkar and the other three constables left Ward No. 46 and climbed down the building of the J.J. Hospital. They came out from the premises of the hospital through gate No. 9 and reached at JJ Corner where they took turn and proceeded towards Byculla Railway Station. The third constable (Buckle No. 27231) went away from the J.J. Hospital premises. Head Constable Khopkar was walking ahead and from the distance of about 25 feet, constable, Gaikwad and constable Shinde were following him on their way to Byculla Railway Station in order to go to their respective houses. When Head Constable Khopkar came near the bus stop en route bus Nos. 6 and 7 in front of gate No. 12 of J.J. Hospital, constable Shinde and constable Gaikwad saw the mob of about 100 persons standing on the other side of the footpath of Sir JJ Road. They further saw that 5 to 6 persons armed with choppers and knives suddenly crossed the road and came towards Head Constable, Khopkar. Thereafter all those persons started stabbing Khopkar by means of choppers and knives, thereby Khopkar sustained severe wounds and bleeding and thereafter he collapsed on the ground. At that stage, constables Gaikwad and Shinde got frightened and therefrom they immediately took turn and went to JJ corner and gave information to the police about the said incident. On receiving the information the police party went to the place of occurrence and took injured Khopkar to J.J. Hospital where Head Constable Khopkar after examination was declared dead. Police constable Gaikwad reported the incident to the police constable on duty in the hospital who immediately reported the incident to Byculla Police Station. On 4-11-93, the police arrested the two appellants herein and accused Mohd. Bilal and Liyakat Rasool. On 7-11-93, the police requested Special Executive Magistrate for holding identification parade. The eye-witnesses - constables Gaikwad and Shinde alleged to have identified the accused persons. Thereafter, on 25-11-93 again, the police requested Special Executive Magistrate to arrange identification parade and inducted appellants in the parade. On 15-1-94, accused Jafar Mohd. Ismail Sayyed was arrested and on 24-1-94, at the instance of police, the Special Executive Magistrate held another identification parade. The police subsequently obtained permission to apply the provisions of TADA and after completing the investigation the police prosecuted the accused persons under TADA. Thus, the two appellants, including the three other accused, came to be prosecuted. All the five accused were charged for the offence punishable under Section 140, I.P.C. read with Section 3(2)(i)(ii) of TADA and also under Section 149/302, I.P.C. All the accused pleaded not guilty to the charge.

(3.) The prosecution examined two eye-witnesses. viz., constables Gaikwad (PW-2) and Shinde (PW-11), who are alleged to be the witnesses of scene of occurrence and identified the two appellants in the Court. By the impugned judgment the appellants were convicted for offence punishable under Section 302/149, I.P.C. and under Section 3(2)(1) of TADA read with Section 149, I.P.C. and were sentenced to suffer life imprisonment and to pay a fine of Rs. 500/- each, and in default to further suffer R.I. for six months. Accused Jafar Mohd. Ismail Sayyed, Mohd. Bilal and Liyakat Rasool Himayat Rasool Shaikh were acquitted for the offence punishable under Sections 144, 149 and 302, I.P.C. and under Section 3 (2)(i)(ii) of TADA. It is, in this way, this appeal has come before us.