SAMEER HASAN SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ALL these appeals arise out of Sessions Case No. 74 of 1994 on the file of III Additional Sessions Judge, Thane. The appellants were tried for unlawful assembly, rioting murder of Vazir Varis Khan under sections 147, 148, 302 read with section 149 of I. P. C. Alternatively they were charged under section 302 read with section 34 of I. P. C. and lastly under section 135 (1) read with section 135 of the Bombay Police Act read with section 34 of I. P. C. In support of the charges the prosecution had examined 17 witnesses in all. The learned Additional Sessions Judge, Thane, vide judgment dated 23rd February, 1998 found all the appellants guilty of the offence of murder of Vazir Varis Khan under section 302 read with section 149 of I. P. C. In addition he also found the appellants guilty for the offences under sections 147, 148 and also under section 37 (1) read with section 135 of the Bombay Police Act. The appellants have been sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- each in default of payment of fine, the accused to further undergo simple imprisonment for three months. No separate punishments were awarded under sections 147 and 148 of the I. P. C. and under section 37 (1) read with section 135 of the Bombay Police Act. The accused were given benefit of set off under section 428 of Cri. P. C. for the detention period spent in police custody/magistrial custody. It appears that during the pendency of the trial and the pendency of the hearing of the appeals of the appellants had been released on bail except the appellant-Usman @ Pappu Iqbal Shaikh.

(2.) THE appellants have challenged their conviction and sentence by filing separate appeals. Criminal Appeal No. 389 of 1998 is filed by original accused No. 2, Criminal Appeal No. 396 of 1998 is filed by original accused Nos. 1 and 7, Criminal Appeal No. 409 of 1998 is filed by original accused No. 6, Criminal Appeal No. 419 of 1998 is filed by original accused No. 3 and Criminal Appeal No. 528 of 1998 is filed by original accused Nos. 4 and 5. The appellants shall hereinafter be referred to by their original numbers as accused in the trial Court.

(3.) THE prosecution case, in brief, as revealed during the course of prosecution evidence, is that there was enmity on account of municipal elections between the original accused No. 1 and father of the deceased Vazir Varis Khan. The enmity between the two is spoken of by prosecution witness P. W. 3-Salima, who is the daughter of the deceased Vazir Varis Khan and this fact is admitted by the original accused Nos. 1, 3, 4, 6 and 7 in their statements under section 313 of Cri. P. C. The prosecution case further is that on 9th August, 1993 at about 4. 00 to 4. 30 p. m. the deceased Vazir Varis came to his house for drinking water and after drinking water he stated that he would go outside. Accordingly, he left the house. His sister Praveen, who has been examined as P. W. 1 asked him not to go outside the house. Since he did not listen to her, she followed him. In the adjacent building mother and sister of Praveen, P. W. 1 were sitting on a bench outside the house of Khatija Khan, who has been examined as P. W. 13. The deceased had gone there and the mother of the deceased told him not to go anywhere and he should go to the house. Inspite of that the deceased Vazir Varis Khan started going towards the gate of the colony. The prosecution case further is that outside the gate accused No. 6-Rashid called the deceased to accompany him in order to go outside near Kehkashan Video Library and near the said Video Library all the accused encircled him and started assaulting him with weapons. Accused No. 1-Iqbal is said to be having an iron rod, accused No. 2-Sameer and accused No. 4-Farid had hockey sticks. Accused No. 3-Pappu had knife and accused No. 7-Yusuf had chopper. It appears that accused Nos. 5 and 6 did not have any weapons with them. It appears that prior to the attack accused No. 7-Yusuf had said that deceased Vazir Varis Khan and his father had become over wise and they should be beaten. It is also the prosecution case that accused No. 1-Iqbal was instigating the other accused to beat the deceased Vazir Varis Khan. As a result of the assault by the accused the deceased suffered injuries and he was bleeding from the injuries. He was accordingly taken to Civil Hospital, Thane from where he was shifted to Sion Hospital, Mumbai. In Sion Hospital, Mumbai the dying declaration of deceased Vazir Varis Khan was recorded by P. W. 5, Police Constable Pandurang, who had been instructed to record the same by P. S. I. Patankar, P. W. 4. According to P. W. 5 Police Constable, Pandurang, the condition of the deceased was critical; he had given one paper to the doctor on which the doctor made endorsement that the patient was in a position to talk; thereafter he recorded the dying declaration of the deceased and obtained his thumb impression since he was not able to hold the pen and sign it. The deceased succumbed to his injuries at about 1. 30 a. m. on 18th August, 1993. The investigation agency went into action and the appellants were promptly arrested within a few days of the incident. At their instance weapons were recovered as also blood stained clothes, some of which were sent to Chemical Analysis. After completing the investigation charge-sheet was filed. The case of the defence is total denial.