SHAIKH MUKHTYAR SHAIKH MEHBOOB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS Criminal Appeal is filed by the Appellants/original accused, being aggrieved by the Judgment and Order dated 27th March, 1986 passed by Sessions Judge, Nasik in Sessions Case No. 140 of 1985. By the impugned Judgment and Order, the learned Sessions Judge, Nasik, convicted all the three appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life.

(2.) THE prosecution case can be briefly narrated as follows : On the night of 18th July, 1985, the appellants came to house of one Tanaji Chavan, who was residing along with his deceased son Trimbak, his wife Ahilyabai and another son in the hut, which was situated at Shriram Nagar in Malegaon City. THE deceased and his brother were earning their livelihood by doing some manual labour work, while their father Tanaji was a Bhelwala in Malegaon. THE victim Trimbak was about30 years of age. THE accused were also residents of Malegaon and were 23 to 25 years of age and accused No. 1 Shaikh Mukthyar was known to Tanaji, as he was staying on the other bank of the river Mausam, which flows in front of the locality known as Shriram Nagar. As per the prosecution story, accused Nos. 2 and 3, namely Mohammed Rafik Abdul Kadir and Shaikh Bismilla Shaikh Fakira were best friends of accused No. 1 Shaikh Mukhtyar. As per the prosecution story, at night on 18th July, 1985, all the three accused went to the house of Tanaji (P. W. 2) and demanded country liquor. Tanaji told them that he was dealing in Bhel and was not dealer in liquor. THE accused, however insisted that Tanaji should procure liquor to them somehow from anywhere. Tanaji however expressed his helplessness which annoyed accused No. 1 Shaikh Mukhtyar to such an extent that Shaikh Mukhtyar hit Tanaji with a stick. Tanaji sustained bleeding injury on his head. He immediately fled away, and proceeded to inform the police. On the way, he met Ahilyabai (P. W. 1; wife of the deceased Trimbak), who was returning from grocer's shop. When Ahilyabai found that her father-in-law Tanaji has bleeding injury on his head, and that, his clothes were also stained with blood, she made enquiries with him as to how it happened. Tanaji then told her that he was assaulted by accused No. 1 Shaikh Mukhtyar, who was accompanied by his two friends. Tanaji also told her that he was going to the police to inform about the incident. Saying this, he went to the Police Station. P. W. 7 Pandurang Buwa, who was P. S. O. , recorded the complaint lodged by Tanaji, on the basis of which, offence at C. R. No. 140 of 1985 under Sections 324 read with Section 34 of the Indian Penal Code was registered against the accused persons. Tanaji (P. W. 2) was immediately forwarded to the dispensary, where he was given first-aid, and was thereafter discharged. Offence registered under C. R. No. 140 of 1985 was duly investigated and charge-sheet came to be filed against the present accused in the Court of Judicial Magistrate, First Class, Malegaon, and the said case is pending at present. As the prosecution story further goes, after Ahilyabai learnt that her father-in-law was assaulted by accused No. 1 Shaikh Mukhtyar and his two friends, she immediately went to her house. Within a short time, her husband Trimbak (deceased) returned home from his job. Ahilyabai narrated what her father-in-law had told her about accused No. 1 and his two friends assaulting Tanaji. THEreafter, Trimbak immediately proceeded to accost these accused and to enquire as to why they had assaulted his father. When he went towards Mausam river, it appears that these accused persons met him, and tried to assault Trimbak. Trimbak then shouted, which attracted the attention of Ahilyabai, who was standing in front of her house. Ahilyabai saw that her husband Trimbak was running for shelter and was being chased by these three accused persons. Trimbak managed to enter into his house, but the accused went after him. Accused No. 1 Shaikh Mukhtyar gave below with a weapon in his hand on the head of Trimbak, whereby he sustained a serious bleeding injury. Accused Nos. 2 and 3 also assaulted Trimbak with sticks, which were in their hands. All the three accused thus assaulted Trimbak by means of fist blows and kicks. Within a couple of minutes, Trimbak fell down in an unconscious condition. THE three accused fled away. Some first-aid was tried to be administered to Trimbak, who was lying unconscious, however, it was found that he was not regaining consciousness. He was immediately removed to Wadia Hospital where the medical officer declared him to be dead. Ahilyabai, shortly after the incident, on the very same day, i. e. on 18th July, 1985, lodged a complaint (Exhibit 7) and crime came to be registered against the three accused vide C. R. No. 116 of 1985 under Section 302 read with Section 34 of the Indian Penal Code. Routine investigation followed and charge-sheet came to be filed against the appellants in the Court of the Judicial Magistrate First Class, Malegaon, and the case came to be committed to the Court of Sessions at Nasik. When charges were framed against the accused, all of them denied the same, and claimed to be tried. THEir defence was that of total denial.

(3.) THE prosecution, to prove its case, has examined in all the nine witnesses. Out of these nine witnesses, P. W. 1 Ahilyabai is allegedly an eye-witness, P. W. 2 Tanaji is her father-in-law, who was also allegedly assaulted by the appellants, and who narrated this incident to his daughter-in-law Ahilyabai while he was going to Police Station to make complaint against the appellants. As already stated, on the complaint made by Tanaji, C. R. No. 140 of 1985 has already been registered, charge-sheet has been filed against the appellants, and the case is pending in Malegaon Court. P. W. 3 is Pandharinath Pawar, who is the panch witness for recovery panchnama of knife (Article 10) from accused No. 1 Shaikh Mukhtyar. P. W. 4 Anwar Munawwar Shaikh is also a panch witness, in whose presence, allegedly lungi of accused No. 2 (Article 8) was attached. He was also panch for the seizure panchnama of the blood stained pant (Article 9) of accused No. 1 Shaikh Mukhtyar. P. W. 5 was one Dr. Ramchandra Dhondiram Sonkamble, who conducted post-mortem of the dead body of Trimbak and prepared post-mortem notes with respect to his autopsy. P. W. 6 one Ranvindra Ganesh Kadam, who was the investigating officer, in-charge of C. R. No. 140 of 1985. He recorded statements of relevant witnesses, prepared the necessary panchnamas, visited the scene of offence, and after completing investigation, filed charge-sheet in the Court of Judicial Magistrate, First Class, Malegaon. Article Nos. 9 and 10 also were recovered at the instance of accused No. 1. P. W. 6 Ravindra Kadam prepared memorandum of the panchnama. He also arranged to hold identification parade for identifying accused Nos. 2 and 3, as accused No. 1 was known to Tanaji, as well as to Ahilyabai and even to other witnesses. P. W. 7 Pandurang Rangnath Bhuwa had recorded complaint of Tanaji and had registered the crime at C. R. No. 140 of 1985. This was about the assault allegedly made by the present appellants on Tanaji. He was also the one who arrested all the three accused in a locality known as 'kalikutti', on the very same day i. e. on 18th July, 1985 at about9 p. m. P. W. 8 was Dattatraya Ramchandra Shejwal, who was at the relevant time attached to Malegaon Camp Police Station, who, on the day of incident i. e. on 18th July, 1985, after learning that Trimbak had died on account of injuries, and was brought to Wadia Hospital, went there, and saw his dead body. He stated that P. W. 1 Ahilyabai was also present there. He made enquiries with her and got the F. I. R. recorded, and registered C. R. No. 116 of 1985. He also held inquest of the dead body of Trimbak, and then, handed over the investigation to Deputy Superintendent of Police Kadam (P. W. 6 ). P. W. 9 Mohan Bhikaji Aher was the Special Judicial Magistrate, who held the test identification parade with respect to appellant No. 2 Mohammed Rafik Abdul Kadir and appellant No. 3 Shaikh Bismilla Shaikh Fakira, on 13th August, 1985 in the open ground behind Tahsil Office at Malegaon.