4. apeal 741-05.doc

RMA

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 741 OF 2005

Mahammad Israil Mahammad Aayub

]

Ansari,

]

Convict Prisoner No. C/5254,

]

Nashik Road Central Prison, Nashik.

] Appellant

(Org. Accused)

Versus

The State of Maharashtra

] Respondent

Ms. Rohini Dandekar, Advocate appointed for the Appellant

Mr. D.P. Adsule, APP for the State

CORAM : SMT. V.K. TAHILRAMANI &

A.R. JOSHI, JJ

DATE : NOVEMBER 30, 2012.

ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :-

1

This Appeal is directed by the Appellant-original accused

against the judgment and order dated 13.01.2005 passed by the

learned Additional Sessions Judge, Niphad in Sessions Case No. 3

of 2004. By the said judgment and order, the learned Sessions

Judge convicted the Appellant under Section 302 of IPC and

sentenced him to life imprisonment. The Appellant was also

convicted under Section 135 of the Bombay Police Act and

sentenced to imprisonment for a period of one year and to pay

Pg 1 of 8

4. apeal 741-05.doc

fine of Rs. 100/- in default imprisonment for one week. The

Appellant was further convicted under Section 25 of the Arms Act

and sentenced to imprisonment for a period of three years and

fine of Rs. 1000/- in default imprisonment for one month. The

learned Sessions Judge directed substantive sentences of

imprisonment to run concurrently.

2

The prosecution case briefly stated, is as under:

(i)

PW 2 Mohammad Altak was residing with his wife and

three children at Madaninagar, Yeola, Dist. Nasik. He has four

brothers including deceased Ashpak. Ashpak was staying on the

same plot as PW 1 Mohammad Altak but just behind the house of

Mohammad Altak. PW 2 Mohammad Altak also had a sister by

name Sadika Banu Sadika Banu was married to the Appellant

about 10 years prior to the incident. They had a son and a

daughter. As the appellant was constantly in jail for some crime

or the other, Sadika Banu and her children used to stay with her

father i.e also the father of PW 2 Mohammad Altak as well as

father of deceased Ashpak. On two occasions, brothers of Sadika

Banu got the Appellant released on bail. The Appellant is a

habitual offender. There were a number of cases against him.

After the Appellant was released on bail on two occasions earlier,

thereafter when the appellant went to jail, the brothers of Sadika

Banu did not make any efforts to release the appellant from jail.

Due to this, the appellant was very much annoyed. In May 2003,

Pg 2 of 8

4. apeal 741-05.doc

the Appellant was released from jail, thereafter, he started saying

that as the brothers of Sadika Banu did not make any efforts to

release him from jail and now that he is released from jail, he will

kill all her brothers one by one. On account of this, Sadika Banu

had also made a complaint to Yeola City Police Station. That NC is

on record at Exhibit 61.

(ii)

On 03.11.2003, PW 1 Mohammad Altak returned home

at about 09.00 to 09.15 p.m. At that time, Parvin Banu, sister-in-

law of Altak came to his house which is situated behind the house

of Altak, crying and shouting that the Appellant is abusing Ashpak.

Therefore, PW 2 immediately rushed to the house of Ashpak. He

saw the appellant taking out a sword from his waist and giving a

blow on the right side of the head behind the right ear of Ashpak

and another blow on the right shoulder. He saw PW 8 Hasina -

Ashpak's wife was also present at the spot. Ashpak fell on the

ground. Thereafter, the appellant ran away form the spot. Ashpak

was taken to hospital but the Doctor, on examining him, declared

him to be dead. Thereafter, PW 2 Mohammad Altak went to the

Police Station and lodged his FIR (Exhibit 19). Thereafter,

investigation commenced. The dead body of Ashpak was sent for

postmortem. PW 7 Dr. Laturkar performed the postmortem o