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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.176 OF 1992

Shaikh Umer Hyder Phuleri

Aged about 41 years,

Mohan Sethi’s Chawl, Kherani Road,

Saki Naka, Bombay – 400 072

....Appellant

Vs.

The State of Maharashtra

....Respondent

.........

Mr.Divesh Chamboowala, for appellant.

Mrs.P.P.Shinde, APP for respondent – State.

.........

CORAM

: P.B.MAJMUDAR &

R.G.KETKAR, JJ.

RESERVED ON : 10

th FEBRUARY, 2010.

PRONOUNCED ON : 11

th MARCH, 2010.

JUDGMENT : (Per R.G.KETKAR, J.)

This Appeal is preferred by the original accused challenging the

judgment and order dated March 10, 1992 passed by the learned

Additional Sessions Judge, Greater Bombay in Sessions Case No.897 of

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1988. By that judgment, the learned Additional Sessions Judge convicted

the appellant/accused of the offence punishable under Section 302 Indian

Penal Code, 1860 (for short “IPC”) and was sentenced to undergo the

imprisonment for life. The case of the prosecution, briefly stated, is as

under.

2]

The complainant Shahabuddin (PW 1) along with his brother Taimur,

since deceased (hereinafter referred to as “the victim”), Shabira (PW 2),

widow of the victim and Nabilal (PW 3), son of the victim were residing in

Manubhai Company Chawl, Chandiwali Firm, Sakinaka, Mumbai. PW 1

Shahabuddin was working as Bull Dozar Mechanic with one Arjun Master

and the victim was owner of a motor lorry bearing registration No.MRL

2922. The victim was carrying on transport business. It is the case of the

prosecution that at the relevant time, the lorry was required to be repaired

for passing it from R.T.O. and the victim was supervising the repairs work.

It is alleged that the victim and the accused were having inimical terms on

account of union rivalry, though they were members of the same union. In

the past, an incident of assault had taken place between the victim and

accused. In the year 1984, there were chapter proceedings on account of

disputes between the victim and the accused. It is the case of the

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prosecution that on April 30, 1988, PW 1 Shahabuddin returned from his

work at about 8 to 8:15 pm. He intended to take bath and was about to

remove his cloths for taking bath, when PW 3 Nabilal, son of victim came

running and said that the accused is beating his father. As soon as PW 3

Nabilal informed about the assault, PW 1 immediately put on his clothes

and followed PW 3 Nabilal. He saw the accused stabbing on the chest of

the victim with a big knife which was about 12 inch in length. At that very

moment, PW 2 Shabira reached the spot of incident.

3]

It is alleged by the prosecution that on account of stabbing, the

victim collapsed on the ground. PW 1 Shahabuddin along with one Gulam

took the victim in a rikshaw to Rajawadi hospital where the victim was

pronounced dead before admission. FIR exhibit 10 of PW 1 Shahabuddin

was recorded and registered in Rajawadi hospital on April 30, 1988 at

about 11:25 pm. PW 1 Shahabuddin reported that the accused has

committed offence in question. On the basis of the FIR exhibit 10, an

offence under Section 302 IPC came to be registered against the

appellant/accused by Sakinaka police station vide C.R.No.246 of 1988.

Inquest panchnama on the dead body of the victim was made and it was

found that the victim had sustained stab wound on the left side of the

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interior chest. It was incised wound of 4 cm x 2 cm. Subsequently,

autopsy was performed on the dead body of the victim by PW 15

Dr.Prakash Ambekar. One incised wound of left precardium oblique in

direction measuring 4 cm X 2 cm x 10 cm lying just lateral to starnal border

about 2.5 cm below the medial third of clavicle on the region of the second

left rib was noticed by the medico. According to PW 15 – Dr.Prakash an

incised wound was