ABDUL KARIM MOHAMMED SHABAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried along with four other accused by the Additional Sessions Judge, sessions Court, Greater Bombay on a charge of having committed offence under section 143, 144, 147, 148 and Section 302 r/w section 149 of the indian Penal Code. By judgment and order dt. 30. 3. 00, the learned Trial Court found only the appellant (Original accused no. 2) guilty of having committed offence under section 302 of the Indian penal Code so convicted and sentenced him to suffer imprisonment for life and fine of Rs. 2000 i. d. to undergo R. I. for six months. The trial court acquitted original accused no. 1, 3, 4 and 5 u/s 302 of the Indian Penal Code and convicted the original accused no. 1, 3 and 4 for having committed offence under section 324 r/w 34 of the Indian Penal Code and sentenced them to suffer imprisonment for a period already undergone. All the accused were acquitted of the charge of forming an unlawful assembly having an object to commit murder of the deceased, Sayyed Farukh Sayyed Gafar.

(2.) THE original accused no. 2, Abdul Karim mohammed Shaban has only preferred an appeal against his conviction and sentence. The state has not challenged the acquittal of the accused persons of the charge of unlawful assembly having a common object to commit murder of the deceased that apart even against other accused who were convicted only for committing offence u. s. 324 r/w sec. 34 of the indian Penal Code though the victim was common and accused persons were concerned with the same transaction.

(3.) IT is the case of the prosecution that the appellant Accused had a quarrel with Sheikh Khaja p. W. No. 4 over the issue that the said witness had abused and insulted his father. On this, the appellant accused threatened him that he will see him later on. This was on 18. 3. 98 at about 8 p. m. On the next day i. e. 19. 3. 98 at about 8 p. m. the appellant accused alongwith his associates i. e. original accused no. 1, 3 and 4 accosted Sheikh khaja (P. W. No. 4) who was standing near Paris Hair cutting Saloon. The appellant accused gave a slap to him and then started assaulting alongwith the other co-accused. Somehow Sheikh Khaja escaped and ran towards his house followed by the accused who hurled abuses and threatened him to come out of his house. The said Sheikh Khaja saw at that time all the accused were armed with deadly weapons like appellant accused was having a long knife (Article 15), original accused no. 1 was having a sword (Article 18), accused no. 4 was having a chopper (Article 16) and original accused no. 3 was having a button knife (Article 17 ). Because of this, he did not come out of the house and therefore the accused persons left the place.