JAVED AHMED A MANSURI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment and order of conviction and sentence dated 6-1-1989 passed by the Addl. City Sessions Judge, 6th Court, Ahmedabad City in Sessions Case No. 68 of 1988 whereby the five appellants, who were accused Nos. 1 to 5 respectively in the Sessions trial, have been convicted/acquitted and sentenced as under :- (i) Accused-appellant No. 1 has been convicted for the offence under Sec. 302 I.P.C and sentenced to undergo imprisonment for life. (ii) Accused-appellant No. 1 has been further convicted for the offence under Sec. 324 I.P.C. and sentenced to undergo R. I. for a period of 3 years. (iii) Accused-appellant No. 1 has been further convicted for the offence under Sec. 135(1) of the Bombay Police Act and sentenced to undergo 4 months' S. I. All the substantive sentences have been ordered to run concurrently. While the accused No. 1 has been acquitted of the charges levelled against him under S.143, 148 and 149 I.P.C., he has been directed to pay compensation under Sec. 357(3) of the Cri. P. C. to the widow of the deceased Mumtaz to the tune of Rs. 8,000.00 within a period of two months from the date of the order of conviction and sentence. (iv) Each of the accused-appellant Nos. 2 to 5 have been convicted for the offence under Sec. 323 I.P.C. and sentenced to undergo year's R. I. However, the benefit of probation under Sec. 360 of the Cr. P.C. and under the Probation of Offenders Act has been given to all of them and they were ordered to be released on probation subject to their observance of good behaviour and also subject to their executing bonds of good behaviour for one year in that respect and surety of Rs. 3,000.00 each, which was to be executed on or before 10- 1-1989. 1998 (3) J. A. MANSURI v. STATE (Cri.App.)-Calla, J. 2601 Each of the accused-appellant Nos. 2 to 5 have been directed to pay Rs. 3,000/ - as compensation to Mumtaz, the widow of the deceased, within two months from the date thereof, if not paid during this period, they shall be called upon to serve the sentence imposed upon them for the charge proved against them under Sec. 323 of I.P.C. However, in view of Sec. 12 of the Probation of Offenders Act, no disqualification is to be attached to these accused-appellant Nos. 2 to 5 on account of their conviction, as aforesaid. (v) Accused-appellant Nos. 2 to 5 have been acquitted of the charges levelled against them under S.143, 148, 149, 504, 506 and 523 I.P.C.

(2.) At the time when this Criminal Appeal came up before the Court for admission, the prayer for suspension of sentence on behalf of the accused-appellant No. 1 was not pressed on 2-3-1989 and it was ordered that in the case of each of the appellants the time to deposit the amount of compensaion is extended upto 23-3-1989. Thereafter, on 24-3-1989 it was ordered that the direction for payment of compensation in the case of each of the appellant Nos. 2 to 5 is ordered to be suspended on the condition that each of the appellant Nos. 2 to 5 shall deposit 50% of the amount of compensation awarded in the case of each of the appellant Nos. 2 to 5 by the trial Court. on or before 4-4-1989. It is further found from the record that a sum of Rs. 6,000.00 i.e., 50% of the amount, which was to be paid as compensation by the accused-appellant Nos. 2 to 5, was paid to Mumtaz, widow of the deceased, as per Sessions Court note dated 3-7-1989, which has been duly noted by the Registry of this Court.

(3.) The prosecution case is that Mohamedtahir Khalil Shaikh along with his brothers including Mukhtar Khalil Shaikh and family members were residing in the Chawl of Jupiter Mills at Dudheshwar Road, Ahmedabad. On 16-12-1987 Shaikh Mukhtar Khalil returned from his job to his home at about 8 O'clock in the evening. He instructed his wife Mumtaz to warm up the dinner and meanwhile he went to common latrine opposite his house at a short distance from his house. While he was returning from the latrine, the accused-appellant No. 1 Javedahmed Allauddin was noticed by him making water in the open. Mukhtar reprimaded the accused-appellant Javedahmed Allauddin for the said act and thereupon there was hot exchange of words, including hurling of abuses between the two. The wife of Mukhtar, who was waiting for her husband to return from the toilet and was standing on the outer portion of the house along with their minor son, had also noted the quarrel between Mukhtar and Javedahmed. The accused-appellant No. 1 Javedahmed got enraged on being reprimanded by Mukhtar and he ran towards his house nearby in the same Chawl and came back with a knife and with this knife he stabbed Shaikh Mukhtar Khalil twice resulting into severe injuries in the chest and the back. Mukhtar fell down and could not move and he shouted for help. Mohmedtahir also witnessed the assault on his brother and the infliction of knife blows to his brother by the accused-appellant No. 1. Mohmedtahir caught hold of Javedahmed, but the accused-appellant Javedahmed holding the knife in his hand got himself freed and in this scuffle between Mohmedtahir and Javedahmed, Mohmedtahir sustained knife injuries on his hand. Accused-appellant No. 1 Javedahmed then fled away. Mukhtar was taken to Civil Hospital, Ahmedabad where he was declared dead by the Hospital authorities. It is also the case of the prosecution that prior to the above incident, about 3 to 4 months ago, Zarina, daughter of Dost Mohmed was to be betrothed to the accused- appellant No. 1 Javedahmed, but it could not materialise and Zarina was engaged somewhere else and as the marriage was fixed, the would be in-laws of Zarina had come to the family of Shaikh Mukhtar Khalil and Shaikh Mohmedtahir and at that time also a quarrel had ensued between the family of the accused-appellant Javedahmed and would be in-laws of Zarina. In this regard a Chapter case was filed and the mother of the accused-appellant No. 1, namely, Gulsanbibi was cited as witness. The family of the accused-appellant Javedahmed had entertained anguish and anger against the family of Mukhtar and Mohmedtahir and thus accused-appellant No. 1 was already nourishing hostility against the family of Mohmedtahir and Mukhtar and, therefore, on being reprimanded by Mukhtar, accused-appellant No.1-Javedahmed acted violently on 16-12-1987 and inflicted deadly blows by his knife on Mukhtar resulting into his death on that very night. The facts in the background have been alleged to establish the motive. It is also the case of the prosecution that when Bai Mumtaz saw her husband being stabbed at the hands of Javedahmed she raised an alarm and shouted for help and when she tried to go to Dudheshwar Police Chowki, she was prevented from doing so by the appellant Nos. 2 to 5, i.e., the mother and three sisters of accused-appellant No. 1 and in their attempt to prevent her from going to the police station there was a scuffle in which Bai Mumtaz sustained injuries at the hands of accused-appellant Nos. 2 to 5, who had caught hold of her and had thrown up her on the ground and had beaten her. It is also the case of the prosecution that Abdulkarim Indubhai Mansuri had assisted the accused-appellant No. 1 in destruction of material evidence against the said accused-appellant and he destroyed the clothes worn by the accused- appellant No. 1 Javedahmed at the time of the commission of the offence. With regard to this incident, which had taken place on 16-12-1987 at about 9-00 p.m. Mohmedtahir lodged the complaint at the Police Station, Dariapur. On the basis of this complaint, a case was registered by Police Station, Dariapur and after investigation the charge-sheet was filed. The trial was held by the Addl. City Sessions Judge at Ahmedabad (Court No. 6) in Sessions Case No. 68 of 1988 against six accused persons on the charges, as aforesid. The 6th accused Abdulkarim Indubhai Mansuri has been acquitted while accused Nos. 1 to 5 had been convicted and sentenced, as stated above by the Addl. City Sessions Judge (Court No. 6), Ahmedabad by judgment and order dated 6-1-1989 in Sessions Case No. 68 of 1988. Aggrieved from the order of conviction and sentence dated 6-1-1989, the present Appeal has been preferred.