NAUSHAD ALI Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 20.08.1997 passed by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 37/1990 arising out of FIR No. 151/1990 registered at Police Station Defence Colony under Section 307/302/34 IPC whereby the co-convict Bobby @ Massey was found guilty of having committed the offence punishable under section 302 IPC and the present appellant Naushad Ali was found to be guilty of having committed the offence punishable under section 302 read with section 34 IPC. The appellant is also aggrieved by the order on sentence dated 20.08.1997 whereby the present appellant Naushad Ali was sentenced to undergo imprisonment for life and was also required to pay a fine of ` 200/- and in default of payment of the fine he was required to undergo simple imprisonment for 7 days.

(2.) WE must point out at this juncture that the co-convict Bobby @ Massey had also filed an appeal being Crl. Appeal No. 368/1997 but, during the pendency of the appeal, he died in a road accident on 09.03.2010. Consequently, by an order dated 02.06.2011 passed by this court, after recording the factum of the death of the co-convict Bobby @ Massey, the Crl. Appeal No. 368/1997 was disposed of in view of the fact that the same had abated in respect of the co-convict Bobby @ Massey on account of his death. It is also relevant to point out that initially there were three accused i.e, the present appellant Naushad Ali, co-convict Bobby @ Massey and one Rajan, who was declared to be a proclaimed offender and has not yet been arrested.

(3.) THE main prosecution witnesses are PW-1 (Madan Gopal), PW-2 (Surender Kumar @ Kaku), PW-3 (Harish Kumar), PW-13 (Dr. M.S. Sagar), and PW-19 (SI Raghubir Singh). As per the prosecution case, there was an altercation between the accused and the deceased Shiv Prasad and PW-2 Surender Kumar @ Kaku about 5-6 days prior to the date of the incident i.e, 05.06.1990. THE altercation, according to the prosecution, was over the alleged fact that the accused had made certain lewd remarks in respect of PW-2 Surender Kumar @ Kakus sister. It is further the case of the prosecution that on 05.06.1990 at about 09.30 p.m. when PW-1 (Madan Gopal), PW-2 (Surender Kumar @ Kaku) and PW-3 Harish Kumar were inside the house of PW-1 (Madan Gopal) and were watching a television programme, the deceased Shiv Prasad, who was the younger brother of PW-1 Madan Gopal, had gone outside to set up his bed for the night. When he went outside, Shiv Prasad was met by the accused Naushad Ali, Bobby @ Massey and Rajan and thereafter an altercation took place during which it is alleged that one of the accused shouted: Dekhta kya hai mar chaku sale ko. Upon this, as per the prosecution, Bobby @ Massey stabbed Shiv Prasad with a dagger. It is then the case of the prosecution that as PW-1 (Madan Gopal), PW-2 (Surender Kumar @ Kaku) and PW-3 (Harish Kumar) had, in the meanwhile, come out of the house upon hearing the commotion, the assailants, which included the appellant, fled from the scene.