ASFAQUE MEHTAB MIRZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BEING aggrieved by the judgment and order of conviction and sentence passed by (he Additional Sessions Judge, Greater Mumbai, on 17. 7. 1997 in Sessions Case nos. 279/93 and 824/1994 against the present appeilant-original. accused No. 2, the appellant has preferred this appeal.

(2.) THIS case was launched by the prosecution against three persons. Accused no. 1 was Chandrabahadur Kisanbahadur Gurung, accused No. 2 was Asfaque Mehtab mirza @ Munna Khan @ Raju @, Rajlaonar Ramakant Yadav and accused No. 3 was mokim Khan Abdul Bazhir Khan. They were charged with several sections including 302 for causing homicidal death of Smt Kamlade vi Oreprakash Chopda However during the trial accused Mokint Khan was absconding and therefore kh case was separated and accused Nos. 1 and 2 were prosecuted The prosecution examined 17 witnesses to prove its case and on appreciation of the evidence the learned Additionsl Sessions Judge came to the conclusion that the prosecution has failed to prove say offence accused No. 1 chandrabahadur and proceeded to convict accused No. 2-Asfaque, the present appellant under various sections as montioned above, ft is this appeal by the accused No,2 which are have now to decide.

(3.) WITH the assistance of the learned counsel for fee accused and the learned public prosecutor we have scrutinized the record and reappreciated the evidence on record. The prosecution story as emerges from our rappreciation stated briefly is that on 23. 12. 1992 around 11. 00 p. m. The husband Omprakash-P. W. 1 and the wife Kamladevi now deceased closed all the doors from inside the house and went to sleep. At about 3. 30 in the morning of 24. 12. 1992 there was sound of bell and the wife Kamladevi went to answer the call. The husband waited for the wife to return and having found that she has not so returned for more than five minutes went to drawing room to notice that the wife was lying on the ground and accused No. 2 was gaging her throat by his hand and the wife was struggling. The husband also noticed pool of blood around the body. At the same time the husband was noticed by accused No. 2 Mokim who rushed to the husband and injured him severely and thereafter ran away. Police were then called, FIR recorded as the accused persons were duly identified and named Investigation started Accused Nos. 1 and 2 were arrested and inspite of efforts Mokim could not be arrested and therefore his case was separated as mentioned above and fee other accused were tried after investigation. The prosecution examined 17 witnesses to prove its case. We will consider in detail our reappreciatioa of this evidence which found favour with the banted trial Judge in granting conviction to accused No. 2.