MOHAMMAD ASLAM ALIAS SHERU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant aggrieved by the Judgment and Order dated 19th/20th December, 1988 passed by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 658 of 1986, convicting and sentencing him to undergo imprisonment for life, for the offence under Section 302 read with Section 34, IPC, has come up in appeal before us.

(2.) SHORTLY stated the prosecution case runs as under :-Sometimes before the incident, Aslam, the elder brother of the deceased Mohammed Asif, had murdered the brother of the appellant and since then relations between the appellant and Mohammed Asif were strained. On 20th April, 1985, at about 10. 15 p. m. the deceased Mohammed Asif was sitting on a bakda (bench) in front of Aziz Tea Stall facing 2nd Cooper Street, near the junction of Pakmodia Street within the limits of Dongri Police Station District Bombay. At that time, Abdul Kadar Abbas Nalwala PW 1 was standing at the pan-shop of Iliasbhai and chewing pan, at a distance of about 15 to 20 feet from Azizbhais teastall. Samad Usman Dudhwala PW 2 at the said time, was standing in front of a mutton shop which was situated at a distance of 8 to 10 feet from the tea-stall of Azizbhai. At the said time, they (PWs. 1 and 2) heard the sound of firing. They saw the appellant along with co-accused Channu who died during the course of investigation, armed with a revolver/pistol. They were pointing the revolver/pistol at Mohammed Asif. Channu was standing behind Mohammed Asif and the appellant was standing in front of him. Abdul Kadar Nalwalla PW 1 saw Channu firing two shots at Mohammed Asif and Samad Dudhwala saw the appellant firing towards Mohammed Asif. As a consequence of the firing, Mohammed Asif fell down from the bakda. There was a commotion. Thereafter, the appellant and Channu ran away. Thereafter, Abdul Kadar Nalwala and Samad Dudhwala ran towards the office of one Iqbalbhai which was situated very near by. Iqbalbhai arranged for a car and on the same, Abdul Kadar Nalwala and Samad Dudhwala took Mohammed Asif to J. J. Hospital. At J. J. Hospital, Mohammed Asif was taken to the emergency.

(3.) EVIDENCE of P. I. Haribhau Kumbhare PW 8 shows that at about 10. 40 p. m. , same night, a telephonic call was received at the Dongri Police Station from J. J. Hospital informing that one Mohammed Asif had been admitted having suffered bullet injuries. On the said information, P. I. Kumbhare PW 8 along with S. I. Vasant Karande PW 9 rushed to J. J. Hospital. On reaching J. J. Hospital, P. I. Kumbhare learnt that Mohammed Asif had been admitted in Ward No. 4. On reaching the said ward, he found that Mohammed Asif was unconscious. He met Abdul Kadar Nalwala PW 1 and directed PSI Karande PW 9 to record the FIR. In his presence, PSI Karande recorded the FIR Exhibit 11, on the information given by Abdul Kadar Nalwala. After recording the FIR, Abdul Kadar Nalwala signed it, and P. I. Kumbhare also counter-signed it. Evidence of P. I. Kumbhare further shows that while Abdul Kadar Nalwala was giving out his FIR, Mohammed Asif breathed his last.