AKHIL ALI JEHANGIR ALI SAYYED Vs. STATE OF MAHARASHTRA
SUPREME COURT OF INDIA
AKHIL ALI JEHANGIR ALI SAYYED
STATE OF MAHARASHTRA
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Thomas, J. -
(1.)In this appeal, we passed an order even when special leave was granted that the consideration would be limited to the nature of offence. Appellant was the first accused. He was arraigned along with one Jabbar as second accused and another person as the third accused in a murder case. The trial court convicted all the three accused of the offence under Section 302 read with Section 34 for the murder of one Moulana Mohammed Yusuf Sheikh. The High Court acquitted the third accused but confirmed the conviction and sentence passed on the first and the second accused. We are told that the second accused preferred a special leave petition No. (2828 of 1999) before this Court and the same was dismissed. Subsequently, he filed a review petition which was also dismissed.
(2.)This appeal by the first accused has to be considered only on the limited question as to the nature of offence. For that purpose, we are proposing to extract the dying declaration relied on by the trial court and the High Court. The relevant portion of the dying declaration is extracted below:
"Today i.e. on 12.6 1992. I was standing in the verandah leaning against the wall of the gallery. At about 1 Oclock, one person by name Akhil who stays on the second floor of my building along with nephew Jabbar, came up climbing the staircase. I asked him as to why four days prior he had got me arrested in a false case. Upon that he replied that he had merely got me arrested but now he would finish me By saying this, Akhil attacked on my chest and abdomen with the sharp weapon in his hand. At that time Jabbar also attacked on my left hand with a sharp weapon When I tried to resist, Chand caught hold of my hands. On account of this incident I started shouting at that time my wife came out of the room and when she intervened, Akhil attacked on her head with a sharp weapon."
(3.)One thing is apparently clear from the above dying declaration. The fatal blow was inflicted by the appellant followed by the one given by the second accused when the deceased confronted him with a query "why four days ago you got me arrested in a false case" From the said query, it is easy to discern that the assailants would have found the deceased in a pugnacious mood. It is quite reasonable to presume that the assailants would have apprehended that the deceased put the said query in retaliation for the false arrest manipulated by the accused. The said apprehension seems to be justified when we looked at the medical evidence which shows that the deceased was smelling alcohol when he was taken before the doctor after sustaining the injuries. If so, the assailants also would have smelt alcohol when the deceased hurled the query quoted above.
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