SHAIKH MOHAMED SALIM KARIMULLAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE five appellants convicted by the Additional Sessions Judge, Bombay under section 302 read with section 149 of the Indian Penal Code ("i. P. C. " for short) and sentenced to life imprisonment and also to pay a fine of Rs. 500/- in default in suffer R. I. for one month, and also convicted under sections 143, 144, 147 and 148 of the I. P. C. and sentenced to suffer R. I. for one year on each count with direction that all the sentences shall run concurrently, have filed this appeal challenging the order of convictions and sentences passed against them.

(2.) THE prosecution case, briefly stated, is as follows: he appellant-original accused No. 4 Ramesh Awala and the deceased Fakir Mohammed Sharif Khan Pathan @ Lala Pathan were on inimical terms due to dispute over a plot of land situated at Malad where the deceased had constructed a hut. The said plot of land was bearing Plot No. 33 and known as Colaba plot situate at Malvani, Malad. On 25th March, 1994 at about 4. 45 p. m. P. W.-1 to 3 who are nieces and nephew of the deceased were going to purchase bread from Yasmin bakery in Malvani area. At that time P. W.-10 Mrs. Yasmin Khan came running and told them that the deceased was being assaulted near the timber mart owned by Abdulla and Kallu Mamu. P. Ws. 1 to 3 then went to the spot where they saw the deceased lying in pool of blood with injuries all over his body. They also saw the accused persons armed with guptis, choppers, bamboos and iron bars and on seeing the prosecution witnesses they ran away. They took Fakir Mohammed to Bhagwati Hospital at Borivli in an autorickshaw. On the way the deceased told P. W. s-1 to 3 that accused Nos. 1 to 6 had assaulted him with chopper,+, iron bars and bamboos. Thereafter he became unconscious. When the deceased was taken to Bhagwati Hospital, he was declared dead. At about the same time, appellant Nos. 1 and 2 went to Malvani Police station and reported the matter. They were at that time holding weapons in their hands. On their report crime was registered being C. R. No. 69 of 1994 at the said police station. Investigation was commenced by Police Inspector Mali who was on duty at that time. Initially on the say of appellant Nos. 1 and 2 an offence under section 307, I. P. C. was registered but when P. I. Mali went to Bhagwati Police station and learnt about the death of Fakir Mohammed, the offence was converted under section 302, I. P. C. I. O. P. I. Mali is examined as P. W. 14. He drew inquest panchanama of the dead body at Bhagwati Hospital. He interrogated P. W. s-1 to 3 in the hospital and took the names of the assailants from them. He also drew spot panchanama which was shown to him by the said witnesses. On their arrest the appellants produced blood stained chopper and gupti in the presence of panchas which were seized under panchanama. Statements of witnesses were recorded by the I. O. and the clothes of the accused were also attached under panchanama. The blood stained clothes of the deceased as well as that of the appellants were sent to chemical analyser, so also the weapons being chopper and gupti. Identification parade was held by S. E. M. After completion of the investigation, charge-sheet was filed in the Court of Metropolitan Magistrate who committed the same to the Court of Sessions. Charges were framed against all the accused under sections 143, 144, 147, 148 and 302 read with section 149, I. P. C. and so also under section 37 (i) (b) read with section 135 of the Bombay Police Act. The accused pleaded not guilty.

(3.) ON behalf of the prosecution, 14 witnesses were examined including P. W.-1, 2 and 3, the nieces and nephew of the deceased who had taken the deceased to the hospital. The other witnesses examined are P. W. 4 Mohammed Sartaj Shaikh, who is an eye-witness; P. W. 5 Mrs. Akhtari Mohammed Hanif, P. W. 10 Mrs. Yasmin Khan, P. W. 6 Ankleshkumar Gupta and P. W. 7 Abdul Wahab who are panch witnesses and in whose presence chopper and gupti were produced by appellant Nos. 1 and 2. P. W. 9 Mohammed Gafoor is another panch witness for the recovery of bamboo by original accused No. 4 and blood stained shirt and pant. P. W. 10 is another panch in whose presence clothes of appellant Nos. 1 and 2 were attached. P. W. 8 Sitaram Jadhav is the S. E. M. who had held the test identification parade. P. W. 12 P. I. Krishna Chavan and P. W. 14 Mali are the police officers who carried out the investigation and P. W. 13 is Dr. Marathe who had performed the post-mortem-examination on the dead body. The defence of the accused was of total denial.