MOHMAD IRFAN NIZAMMUDDIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is directed against the judgment and order dated 20.1.2006 passed by the learned Addl. Sessions Judge, 4th Fast Track Court, Surat in Sessions Case No. 234/2005, whereby, the appellant accused has been convicted for the offence under section 302, 34 and 323 of IPC and sentence has been imposed of life imprisonment with fine of Rs. 30,000/- and in default of payment of fine, two years R/I and one month S/I with fine of Rs. 500/- for the offence under sec. 323 of IPC.

(2.) As per the prosecution case, Zinnatben PW-8, Exh. 21, mother of the deceased Mahmad Hanif, filed the complaint on 1.1.1996 with Sachin Police Station, stating that at about 4.00 hours in the evening, when she and her son Mahmad Hanif were sitting on the Otla, at that time, Irfan, Amin Gafur and Ilyas came on scooter near Otla and Irfan shouted that where is Baba and he asked him to come out. Therefore, Baba came to the scooter, at that time, Irfan told him that had Baba became Dada , and then he gave abuses and they came out with the weapons. Irfan was having Gupti, Amin was having hockey and Ilyas was having sword with them and they started giving blows to her son Mahmad Hanif. Therefore, her son wanted to escape but he had fallen down and in order to save her son, the complainant ran and covered him, at that time, Irfan caught hold of hair (chotlo) of complainant and thrown her away and gave blow with gupti on the left side of the deceased. Ilyas gave a blow with sword on the leg below knee and Amin gave a blow of hockey on the head of the deceased. When they were giving other blows, the complainant stood up and came in between and she sustained injury on the right hand. Her son Mahmad Hanif had fallen down on the heap of clay and she started shouting. Other persons came there, and in the meantime, all the three accused ran away by leaving scooter at that place and as stated by her, she had thrown stones over the accused. The police investigated into the complaint, and as the appellant herein, was initially arrested, but thereafter he had absconded, the charge-sheet was filed against other two accused, namely Amin Gafur Saiyed and Mahmad Ilyas Abdulgani Shaikh, and ultimately, the case was committed to the Court of Sessions being Sessions Case No. 147/1996. We may state that in the said case, the learned Sessions Judge vide judgment and order dated 30.4.1999 convicted both the accused for the offence under sec. 302 read with sec. 34 of IPC and imposed life imprisonment with the fine of Rs. 1000/-, with a direction that remaining accused Irfan, who was reported absconding, be arrested and separate charge-sheet be filed. The appellant herein was subsequently arrested by the police and separate charge-sheet was filed against him and thereafter, the case was committed to the Court of Sessions, being Sessions Case No. 234 of 2005.

(3.) The prosecution, in order to prove the guilt of the accused, examined 19 witnesses, whose details are given at para-6 of the judgment of the learned Sessions Judge. The prosecution also produced documentary evidence of 16 documents, the details of which, are mentioned at para-7 of the judgment of the learned Sessions Judge. The learned Sessions Judge thereafter, recorded the statement of the accused under sec. 313 of CrPC, wherein, the accused denied the evidence against him and in the further statement, he only stated that he is innocent and he has been wrongly involved in the case. The learned Sessions Judge, thereafter, heard the prosecution and the defence and found the accused guilty for the offence under sections 302, 323 and 34 of IPC. The learned Sessions Judge, thereafter, heard the accused on the aspect of sentence and ultimately, by the impugned judgment and order, has imposed the sentences as referred to hereinabove, and acquitted the accused for the offence under section 504 of IPC. Under the circumstances, the present appeal before this Court.