B.P. Dharmadhikari, J.

Total 9 persons were accused of offences under sections 302, 143,144,147,148, S.149 & S.120B IPC & 37(1)(a),135 of Bombay Police Act for killing one Hanif @ Allabakshish Allauddin Shaikh on 07/10/2008. Accused Nos. 1 to 8 were tried together & and vide impugned judgment & order dated 18.10.2010 passed by the Extra Joint Adhoc Additional Sessions Judge, C.R. No. 2, Sewree, Mumbai has in Sessions Trial 51 of 2010 convicted accused Nos.1 to 5 while accused Nos.6 to 8 have been acquitted. Acquittal of accused Nos.6 to 8 has not been challenged by the State or by any aggrieved before this Court. Similarly, accused No. 9 Zakir Hussain Abdul Mannan Shaikh who is stated to be the brain & principal behind the conspiracy was tried separately in Sessions Case 461 of 2013 & has been acquitted by the Sessions Judge, Greater Mumbai on 12/04/2016. This acquittal has also become final.

2. Appellants Nos.1, 2 & 4 are before this Court in Appeal 867/2010 while Appeal 957/2011 is by accused 3 & Appeal 967 of 2011 is preferred by accused no. 5.

3. It will be beneficial to note the effort of prosecution before the Trial Court as under:

One Doctor by name Mohd. Fahim Shaikh and deceased Allabakhsh were partners in a medical shop. Prior to the date of incident dated 7/10/2018, about 4 days before deceased Allabakhsh informed Fahim Shaikh about dispute between himself and Jakir Shaikh on the unloading of vehicles carrying scrap. On 7/10/2008 Allabakhsh visited medical shop at 11.00 p.m. and at about 11.20 p.m. he was on his way to his residence. When he was passing by Road No.13 and turning towards lane, he was assaulted by accused No.1-Khurshid @ Mullani Harun Shaikh, accused No.2- Soheb Asifali Kazi, accused No.3-Alpraj @ Tantan, accused No.4-Sunil @ Papa and accused No.5-Iliyas @ Illu. Dawood Parkar and Jahir Idris then standing on road near house of Dawood Parkar saw them assaulting Allabaksh with weapons like bamboo, dragger, knife and chopper. After attack they ran away with weapons. Jahir Idris and Dawood Ibrahim (PW-4 and PW-5) both went to the spot and found Allabaksh with multiple injuries in pool of blood. Allabaksh was then shifted to hospital at Rajwadi where he was declared dead.

4. Rajwadi hospital informed Shivaji Nagar Police Station at 11.40 a.m. and PSI Gadhave on duty went to hospital prepared inquest panchanama. He recorded statement of Mohd. Farooq Siddiqui (PW-2) which was subsequently treated as FIR and Crime No.316/2008 was registered against accused. During investigation criminal conspiracy to commit murder of Allabaksh came to surface. After arrest of respective accused blood stained clothes and consequent to discovery under section 27 of the Evidence Act blood stained weapons were seized. PW-2 produced mobile handset of deceased Allabaksh on 12/10/2018 and police collected CDR. Charge-sheet was then submitted to the competent Court. After the matter was committed to Sessions Court, Court of Sessions at Sewree in Sessions Case No.51/2009 framed 7 charges which are as under:

FIRSTLY: That you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh on 7/10/2008 at 11.25 p.m. on the road between plots Nos.34 and 35, Baiganwadi, Govandi, Mumbai were members of an unlawful assembly, the common object of which was to commit murder of Hanif @ Allabaksh Allauddin Shaikh and thereby committed an offence punishable u/s.143 of I.P.C. and within my cognizance;

SECONDLY: That on the same date, time and place, you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh being armed with deadly weapons like chopper, knife, dagger and bamboo stick, which used as weapons of offence was likely to cause death, were members of an unlawful assembly and thereby committed an offence punishable u/s.144 of I.P.C. and within my cognizance;

THIRDLY: That on the same date, time and place, you accused Nos.1 to 8 alongwith absconding accused Jakir Hussain Shaikh were members of an unlawful assembly, and