AKRAM KHAN SIRAJULHAQ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal filed under section 374 of Cri.P.C. is directed against the order of conviction and sentence passed by the learned Additional Sessions Judge for Greater Mumbai in Sessions Case No. 433 of 1991, on 8th, 9th and 12th Au-gust, 2002 and by the said order, the appel-lant, sole accused, came to be convicted for the offence punishable under section 302 of I.P.C. and sentenced to suffer RI for life and to pay a fine of Rs. 1000/-, in default further RI for one month. During the trial, the ac-cused was on bail and his bail bonds were cancelled and he was directed to be taken in custody on pronouncement of the order of conviction and sentence. On admission of this appeal, the bail applications were re-

(2.) We were informed across the bar that Shri A.P. Gupte, who had filed this appeal on behalf of the appellant had also conducted the trial in Sessions Case No. 433 of 1991, as a defence Counsel and sometimes in the year 2002 when the appellant failed to ob-tain bail, as per the information provided by Shri Gupte, the appellant had taken away the papers from him. The record of this ap-peal shows that while in jail, on 6/7/2004 the appellant submitted an application to this Court to appoint a defence Counsel for him at the Government expenses and hence we appointed Shri A.P. Gupte as the Advocate for the appellant in this appeal.

(3.) As per the prosecution, P.W. 5 -Mumtaz Begum and her husband -Hamjamiya @ Babu Abdul Karim were re-siding at M.K. Chawl, Naitodi Village, Eksar Road, Borivali (W), Murnbai and begot three daughters and two sons. Hamjamiya was employed with a company by name Zarman Remedies in place of his father and he was involved in an extra marital relationship with another lady by name Ayesha Begum, the daughter of Majid Chappalwala, resident of the same area and in due course of time, Ayesha Begum came to be married with the appellant-accused. On 27/1/1991, P.W. 5 had gone to her sister's house near Dahisar Railway Gate and at about 9 p.m. she re-ceived a message that her husband was stabbed by a knife and was taken to Bhagwati Hospital at Borivali and he was declared dead. There was an assault inflicted on the deceased - Hamjamiya by the accused at about 8.30 p.m. in or near the urinal located behind the house of P.W. 2 - Mohd. Adil Ansari, on account of a quarrel between the two of them i.e. the deceased and the ac-cused. The stab injuries were inflicted by a button knife by the accused and he was caught hold by the mob present at the spot. When the deceased was taken to the hospi-tal via the Police Station, the accused was beaten up by the mob and sustained some bleeding injuries and had fallen down at or near the spot of the incident and with the help of the residents he was picked up by two police constables, who were on patrol-ling/detection duty, immediately after the incident. He was admitted overnight in the police hospital at the municipal hosptial at Borivali. FIR at Exh. 9 came to be registered on the same day between 10 to 11 p.m. on the basis of the complaint submitted by P.W. 3 - Sayyed Iqbal Ahmed, an auto-rickshaw driver, after the injured was declared dead and the injured was taken by P.W. 3 and P.W. 4 - Yakub Hasan Vadekar who is the brother-in-law of the deceased. Inquest Panchanama at Exh. 6 was drawn at about 11.30 p.m. and P.W. 1 - Shri Shaikh Yusuf was one of the panchas for the same. The accused was taken to the Borivali Police Sta-tion by the police constables on detection duty and he was subsequently arrested. The I.O. visited the spot of the incident, recov-ered one button knife and also collected blood mixed soil therefrom. Spot Panchanama along with recovery of knife was drawn at Exh. 24 and P.W. 7 - Dilip Mane was one of the witnesses for the same. The blood stained clothes on the person of the accused were also recovered and sealed along with the blood stained clothes recovered from the dead body of Hamjamiya. These articles were sub-sequently sent for C.A. on 25/3/1991. On 28/1 /1991 the dead body of Hamjamiya was sent for post-mortem and P.W. 6-Dr. Baban Shinde, attached to the Additional Coroners Court at Juhu conducted the autopsy and signed post-mortem notes at Exh. 14, be-tween 12.30 to 1.20 p.m. He had also taken blood samples from the body of the deceased and sent for C.A. The blood group of the ac-cused remained inconclusive and there was no trace of any alcohol/poison in his blood as per the C.A. reports at Exhs. 15 and 16. The investigation was taken over and com-pleted by Shri Bhujangwar, PI, and on com-pletion of the investigation, charge-sheet came to be filed on 26/4/1991. As the case was triable exclusively by the Sessions Court, it was committed on 10/5/1991 and the learned Additional Sessions Judge framed the charge on 12/2/2001.