USMANGANI JIKRI MOHAMMAD SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE four criminal appeals and one revision application have been heard together and are being disposed of by this common judgment. Five persons were put up for trial before the Additional Sessions Judge, Bombay in Sessions Case No. 854 of 1989 charged of offences punishable under section 302 read with section 34 I. P. C. for murder, and under section 460 read with section 109 of the Indian Penal Code, for committing offence of lurking house trespass by night. One Indrajeet Bhagwant Singh Anand aged about 18 years was murdered on April 27, 1989. The death of Indrajeet Singh was allegedly caused by accused Nos. 1, 2 and 3. Accused No. 1 is Ahmed Shaikh Babajan, hereinafter referred to as accused No. 1. Accused No. 2, Usmangani Jikri Mohd. Shaikh is the brother-in-law of accused No. 1, being the brother of his wife Asmabi, accused No. 4. He shall be referred to as accused No. 2. Accused No. 3 Moinuddin Ibrahim Khan is said to be the estate agent through whom the apartment belonging to respondent No. 4 was let-out to P. W. 6, mother of the deceased, on leave and licence basis. As earlier stated, accused No. 4 Asmabi is the wife of accused No. 1, while accused No. 5 Rahimabi is the sister of accused No. 1. The trial Court by its judgment and order dated 25-4-1995 has found accused Nos. 1, 2 and 3 guilty of offence punishable under section 456 read with sections 109 of I. P. C. and sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5000/- each, and in default to undergo simple imprisonment for six months. They have, however, been acquitted of the charge under section 302 read with section 34 I. P. C. accused No. 4 and 5 the two female accused, have been found guilty of offence punishable under section 456 I. P. C. and sentenced to 2 years rigorous imprisonment and to pay a fine of Rs. 5,000/- each, and in default to undergo simple imprisonment for six months. Though all the accused were charged of the offence punishable under section 460 I. P. C. , only accused Nos. 1, 2 and 3 were charged under section 302 read with section 34 I. P. C.

(2.) CRIMINAL Appeal No. 240 of 1995 has been preferred by accused No. 2 Usmangani and accused No. 4 Asmabi. Criminal Appeal No. 241 of 1995 has been preferred by accused No. 1 Ahmed Shaikh and his sister Rahimabi accused No. 5. Criminal Appeal No. 273 of 1995 has been preferred by Moinuddin accused No. 3. Criminal Appeal No. 381 of 1995 has been preferred by the State of Maharashtra against acquittal of accused Nos. 1, 2 and 3 of the charge under section 302 read with section 34 I. P. C. as also against the acquittal of the accused under section 460 I. P. C. Criminal Revision Application No. 156 of 1995 has been preferred by the informant Arvinder Singh Bhagwant Singh Anand, P. W. 1 and Harjeet Kaur, P. W. 5. As earlier noticed, accused No. 1 is the husband of accused No. 4 and the brother of accused No. 5. He is also the brother-in-law of accused No. 2. Accused No. 3 is the estate agent through whom P. W. 6-Rani Bhagwant Singh mother of deceased, had obtained the apartment on leave and licence basis from accused No. 1.

(3.) THE case of the prosecution is that on 27-4-1989 at about 7. 30 p. m. , accused Nos. 1, 2 and 3 assaulted Indrajeet Singh, brother of the informant Arvinder Singh, P. W. 1. It is not the prosecutions case that any arms were used, but the aforesaid accused persons assaulted him with fists and kicks, and it appears that in the scuffle Indrajeet Singh was strangulated to death, as disclosed by the medical evidence. The case of the prosecution is that the occurrence was witnessed by Arvinder Singh, P. W. 1 and Sunil Salvi, P. W. 2, a Police Constable and a resident of the locality. Immediately after the occurrence Indrajeet Singh was removed to the clinic of one Dr. Asif Ali (P. W. 8) which was on the ground floor of the same building in which the deceased resided. At the time when Indrajeet Singh (deceased) was removed to the clinic of Dr. Asif Ali, he has unconscious and did not respond to the treatment given by the said Dr. Asif Ali. The police petrol van had come on receiving information and apprehended accused No. 1 Ahmed Shaikh and accused No. 2 Usmangani who had been detained by the crowd for having assaulted Indrajeet Singh. They along with the injured had also been taken to the clinic of Dr. Asif Ali by the mob, where the police patrol van come on information being given to the Police Control Room. The injured was then taken to the Cooper Hospital for better treatment in the same police van. On reaching the hospital, the Medical Officer declared him dead. The First Information Report about the occurrence was lodged by P. W. 1 Arvinder Singh at about 10. 30 p. m. at the D. N. Nagar Police Station pursuant to which, investigation was taken up and, ultimately, all the accused were charged of the offence punishable under section 460 I. P. C. while accused Nos. 1, 2 and 3 were also charged of the offence punishable under section 302 read with section 34 I. P. C. They were put up for trial before the Additional Sessions Judge, Greater Bombay.