NIYAZ AHMAD ABDUL JABBAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by the appellants/original accused Nos. 1, 2 and 3 challenging the judgment and order passed by II additional Sessions Judge, Nagpur in Sessions Trial No. 428 of 1997 on 4/04/1998, convicting the appellants for the offence under section 302 read with section 34 of the Indian Penal Code for committing murder of one Niyaj nayaj Mainuddin and sentencing them to imprisonment for life.

(2.) THE prosecution case as disclosed through the evidence of eye-witnesses sk. Arif (P. W. 2) and Naeem (P. W. 4) is that on the day of occurrence which took place on 11-2-1997 at about 17. 45 hours when they were standing in naya Bazar Chowk area of Kamptee, Nagpur, deceased Niyaj asked them to accompany him to the house of his aunt namely Surayya to attend the party hosted by her on the eve of Idd festival and accordingly then went to the house of Surayya where they found that some other persons were already present in the house and, therefore, on being asked by deceased Niyaj they all came out of the house and went to chowk area of Kolsa Tal Masjid. After they went there, deceased Niyaj asked them to remain there as he was to go to see his another friend. He accordingly went and within the period of five to ten minutes, returned to that place and then all of them were to proceed to the house of Surayya. It is the case of prosecution that the appellants and one juvenile Majid were seen approaching towards them and they made utterances pointing towards deceased Niyaj that he was to take revenge against them, but they have decided to take revenge against him on account of previous enmity and accused No. 3 Shamma immediately took out a knife from his waist portion and that the victim seeing that stance of accused No. 3, raised his hands and gave a fist blow to accused No. 3 and ran towards the temple of qod Shiva and he tried to pull out the Trishul which was embedded in the earth near the statute of Lord Shiva. The appellants and Majid chased behind deceased Niyaj and they also reached to the temple and it was accused No. 3 who then gave kick blow on the person of deceased Niyaj as a result of which deceased Niyaj fell down on the ground and one of the sleeves of his shirt got entangled with the sharp edge of Trishul. When deceased Niyaj was trying to get released his hand, accused Sheikh Mumtaz put his teft leg on the right hand of deceased Niyaj and accused No. 1 Niyaz had set on the chest of deceased Niyaj and the appellants and juvenile Majid started assaulting the victim Niyaj by giving blows of weapons which they were armed with. In the assault, victim Niyaj sustained severe and serious injuries on his chest as also other parts of his body and he was almost done to death. Accused No. 3 shamma is said to have actually cut the throat of the deceased with the weapon he was armed with. The accused persons threatened the witnesses of dire consequences as a result of which none could dare to intervene to rescue the victim, much less to go to the Police Station to make a report. The appellants ran away seeing the victim Niyaj having died instantaneously on that place.

(3.) IT was witnesses Naeem who later on went to the house of Ainuddin moinuddin (P. W. 1) who was Uncle of deceased Niyaj and informed him that what had taken place including the fact that the appellants and juvenile Majid have done to death victim Niyaj. Ainuddin immediately went to the place of occurrence and after seeing the dead body of his nephew Niyaj lying near the temple went to the Police Station and lodged the report about the occurrence. On his report (Exh. 32), the Police Station Officer recorded First Information report (Exh. 33) and offence was registered against the appellants and juvenile Majid vide Cri. No. 54 of 1997. During the course of investigation conducted by P. S. I. Baba Idumiyan Sheikh (P. W. 7), spot panchnoma was made vide Exh. 8 and the dead body was sent to Rural Hospital, Kamptee for carrying out the autopsy. The Medical Officer carried the autopsy and prepared the post-mortem note (Exh. 24 ). As could be seen from the post- mortem report, the Medical Officer noticed in all 12 injuries as described in Column No. 17 as also corresponding injuries which came to be noted in Column Nos. 19 and 20. In the opinion of the Medical Officer, the injuries were ante mortem in nature. The probable cause of death was on account of the multiple injuries including the injuries on the chest as also on the frontal portion of the neck. It is pertinent to note that the Injury No. 1 which was on the neck was an incised wound 3 and 1/2" x 3" x 1/2" around the trachea. The injury over sternal angle was 3" x 1 and 1/2" with other 5 injuries. It is also very pertinent to note that in the thorax region there was fracture on left side of second and third rib as also fracture of the second rib on the right side. There was injury to right and left lungs. Pericardium was found punctured and there was internal injury to the heart having length of 2" on the upper side and that of 1 and 1/2" on the lower side. At this stage, it has to be mentioned that the defence has not disputed the factum of injuries sustained by the victim as also his homicidal death on account of the injuries and that is why defence has admitted the post-mortem report.