AKBAR NAZIR AHMED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 2nd November, 1988 rendered by the Additional sessions. Judge, Greater Bombay, in Sessions Case No. 15 of 1981 by which the appellants-accused (for short "appellant" or "accused") have been convicted for the offence punishable under section 302 read with section 149 of the Indian Penal Code (for short. "i. P. C. ") and sentenced to undergo imprisonment for life. They arc also convicted for the offence punishable under section 147 i. P. C. and sentenced to undergo one year R. I. and a fine of Rs. 100/- each. Accused Nos. 1, 4 and 5 arc also convicted for the offence punishable under section 148 i. P. C. and sentenced to undergo one year R. I. and a fine of Rs. 100/ -. This was on the allegations that appellant nos. 1 to 5 along with some unknown persons being members of the unlawful assembly have committed murder of one salauddin on 18th July, 1978 at 3. 40 p. m.

(2.) THE prosecution case, as unfolded from the evidence of an eye witness Krishna Shelar (PW 1) stated briefly is that on 18th July, 1978 he was proceeding in a bus No. 302 towards Kurla bus depot. He was sitting behind driver's seat. When the bus reached near Shivaji Kutir mandir, he saw one tall person, who is deceased in the instant appeal, came running from Shivaji Kutir Mandir and 10-15 persons were chasing him. He witnessed the entire incident from the bus which, according to him, was proceeding slowly on account of crowd and rush on the street. He saw one of the persons amongst those 10-15 persons threw one iron pipe so as to hit the same to the deceased which did not knock him. The person armed with iron pipe was appellant No. 1. Thereafter he saw two persons caught the deceased and released him immediately since he was having knife in his hand. The deceased went further and stopped in front of the bus depot. There he was trying to enter a shop of scrap. The shop owner, however, asked those 10-15 persons not to assault him in his shop. Those 10-15 persons caught the deceased and pulled him out of the shop. One tall and thin person amongst those 10-15 persons, holding iron pipe, who was subsequently identified as appellant No. 1, hit the deceased on his head. It is case of the prosepution that the deceased was holding Knife smeared with blood at the relevant time. After he was assaulted with the iron pipe he threw the knife towards a small hillock. It appears that as a result of the blow of iron pipe the deceased fell down. Thereafter. 5-6 persons, out of those 10-15 persons, assaulted the deceased with kicks and fist blows. One person assaulted the deceased on his stomach and head with stone. He was subsequently identified as appellant no,5. One another person alleged to have stabbed twice on ms stomach and neck with knife. He was identified as appellant No. 3. PW 1 complainant proceeds to state that he got down from the bus near depot and went to the spot of incident. There he was threatened by one of the persons amongst those 10-15 persons to go away. In the meanwhile police reached the scene of offence in van and seeing that the assailants fled. The injured was thereafter taken in the van to hospital. The complainant - PW 1 was taken to police station in another van where he narrated the entire incident as seen by him. It was reduced to writing at 4. 45 p. m. as f. I. R. Exhibit 16. The investigation was set if motion on the basis of F. I. R. lodged by PW 1. PW 1 was taken to hospital to identify dead body of the deceased Salauddin. The appellants were also identified by PW 1 in the identification parade conducted by PW 4 Shinde on 2. 1. 7. 1978 and 27. 7. 1978. PW 1 identified appellant No. 5 as a person who hit with iron pipe to the deceased and appellant No. 3 who stabbed twice on the stomach and neck of the deceased. PW 1 appear to have committed serious error in his testimony regarding identification of the accused persons. We will deal with that while :recording our reasons in the latter part of the instant judgment. The investigation was completed and charge sheet was submitted on 29. 2. 1980 in the court of Additional chief Metropolitan Magistrate, 11th Court, Kurla vide c. C. NO. 345/p/80 and the case was committed to the court of sessions by Order dated 10. 12. 1980. The charge was framed in the present case on 20. 9. 1988 under section 302 read with section 149 I. P. C. and in the alternative under section 302 read with section 34 I. P. C. and also under section 147 I. P. C. against all the accused and under section 148 I. P. C. against accused Nos. 1, 4 and 5. The plea of the accused was recorded on 20. 9. 1988. The accused entered plea of not guilty and claimed to be tried. The defence propounded by the accused persons is of alibi. They have emphatically denied to have any connection with the murder of Salauddin. According to them they were not present at the spot of offence, they are innoncent and did not have any knowledge of the alleged incident. Accused No. 1 has taken a category defence that he was at his village and there he received telegram about the attempt on the life of his Maternal uncle Lias Mohammed and. therefore, he came down to Bombay where he learnt about the alleged incident. The defence of other accused is also somewhat similar who have denied their presence at the scene of offence. The alleged motive for committing the fence in question was that one Lias Mohammed, Maternal Uncle of accused No. l, was stabbed by Salauddin on the opposite footpath of same road before the occurrence in the present case. The chasing of Salauddin and assault on him was fall out of the said stabbing to Lias Mohammed by the deceased salauddin. The offence also came to be registered under section 302 I. P. C. vide C. R. No. 512/78 for the alleged attack on Lias Mohammed by the deceased.

(3.) THE prosecution, to bring home the guilt of the appellants, has examined as many as seven witnesses consisting of an eye witness namely Krishna Shelar (PW 1); anis Mohammed (PW 2) another eye witness, who turned hostile; two panchas; Shinde (PW 4) Special Executive magistrate, who conducted test identification parade; moghe (PW 6) - Investigating Officer and Dr. Franklin (P. W. 7 ). The Additional Sessions Judge on appraisal of the deposition of the witnesses and perusal of various exhibits, relied upon by the prosecution convicted the accused by the impugned judgment. The conviction is mainly based upon the evidence of PW 1 and circumstantial evidence such as identification parade; recovery of clothes of accused No. 1 having blood stains of "a" group; which was the blood group of the deceased Salauddin; the panchnama of the scene of offence and the post mortem report as corroborative piece of evidence.