ABDUL SATTAR BABU SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this appeal the appellants are challenging the judgment and order dated 27-2-1996 passed by the Additional Sessions Judge, Greater Bombay, in Sessions case No.245 of 1992, convicting and sentencing them in the manner stated hereinafter :- (i) Under section 302 read with 34 IPC to imprisonment for life and to pay a fine of Rs. 500/- each, in default to undergo 3 months rigorous imprisonment; and (ii) Under section 27 of the Arms Act read with 34 IPC to One year's rigorous imprisonment each.

(2.) IN short the prosecution case runs as under : ' the four appellants are inter se connected, inasmuch as, Abdul Sattar Babu Shaikh and Usman Gani Noor Mohamed Sheikh are real brothers and Shamsherali Akbar Ali and Abdul Samshuddin Shaikh are their friends. It is alleged that in between appellant Abdul Sattar Babu Shaikh and Gaffer Chikna, son of the deceased Abdul Gani, there was an inimical strain. About 4 months prior to the incident Gaffer Chikna had assaulted Tanda, the real brother of appellant Abdul Sattar. On 17-10-1991, Khatna ceremony was being performed in Saibaba Chawl, of Shahid, the wife's sister's son of Tariq Sayed Mohd. Sayed. The said ceremony amongst others was attended by the deceased Abdul Gani and Abdul Kaalik Abdul Aziz Shaikh P. W. 2a. During the ceremony acquitted accused Iqbal and appellant no. 4, Abdul Rauf were also present. At about 11. 30 p. m. Abdul Gani along with Abdul Kaalik left. Abdul Gani told Abdul Kaalik that he would go to his house. On their way, while they were standing in front of the pan shop of one Shabbir situated on Behrampada Road, they noticed acquitted accused Raju and absconding accused Alam, passing from the pan shop to Kherwadi Road. Abdul Gani smelt something fishy. He told Abdul Kaalik that he would leave the place and asked him to bring the pan. After taking pan Abdul Kaalik stopped at the coin tea shop, situated nearby. He saw 8 to 10 persons coming from Kherwadi Road towards him and Abdul Gani. They were the appellants, acquitted accused Iqbal, Raju and Ayub; absconding accused Anna and Alam who died prior to the commencement of the trial. All of them were armed with choppers. There was electric light. The appellants and five others thereafter assaulted Abdul Gani with choppers. Apart from Abdul Kaalik this incident was seen by Salim Usman Mansuri P. W. 1, and Mohd. Iqbal Shaukat Hussain P. W.6 . After fatally assaulting Abdul Gani the appellants and others are alleged to have run away. Salim Usman Mansuri P. W. 1 immediately rushed to police chowki, Nirmal Nagar, which was practically adjacent to the place of the incident. He saw 3 to 4 constables and told them that "mara Mari Ho Gaya". It is said that the said constables took Abdul Gani to Bhabha Hospital where he was pronounced dead.

(3.) AFTER recording the FIR, P. I. Lahade and S. I. Wagh along with the informant rushed to the spot of the incident where the spot panchanama was prepared by S. I. Wagh and countersigned by P. I. Lahade. From the place of the incident blood stained earth was seized under a panchanama. On 18-12-1991 five witnesses, including Tariq Sayed P. W. 5, were interrogated. On 19-12-1991 Abdul Kaalik P. W. 2a and Mohd. Iqbal P. W. 6 were interrogated. During the course of investigation the appellants were arrested. It is said that on the pointing out of appellants Samsherali and Abdul Rauf choppers were recovered. However, we are not going deeper into this evidence of recovery because we find that the same, for very substantial reasons contained in paragraphs 77 and 78 of the impugned judgment, has been rejected by the learned trial judge. The weapons recovered along with the clothes of the deceased and blood stained earth were sent to Chemical Analyst and after completion of the investigation the appellants along with some others were chargesheeted.