- (1.) This Appeal is directed against the judgment and order dated 10th February, 2009 passed by learned Sessions Judge, City Civil & Sessions Court, Greater Mumbai thereby convicting the appellant/accused for the offences punishable under section 302 r/w. 34 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default further to suffer R.I. for 15 days.
(2.) The case of the prosecution is as follows : Complainant Rashid Gazi Ahmed Gazi was resident of Shivajinagar, Govandi, Mumbai. He was having the business of cloth cover. His nephew Ayub and his real brother Wahid used to help him in the business. He had employed two workers, i.e., appellant/accused Mohd. Sattarul and co-accused Rana Mulla. They all used to sleep in the shop. The incident of assault has taken place on the night intervening 12th August, 2007 and 13th August, 2007. On 12th August, 2007, deceased Wahid had collected money of Rs.4,000/- from the party of which the appellant and other accused had knowledge. However, on the same night, Wahid handed over the said amount to his brother, i.e., complainant, which fact was not known to the accused. On 12th August, 2007, the accused, Wahid and Ayub were sleeping in the shop. In the morning, when complainant arrived at the shop, he was surprised to see that the shop was not opened and the door was not locked from inside, so he shouted but nobody responded. When he went inside, he found Ayub was sleeping and one person was covered in bed cover. When he took out the cover, he noticed his brother Wahid had sustained injury on his neck. He was lying in pool of blood and was dead. His servants, i.e., appellant/accused and other accused were not in the shop. He woke up his nephew, who was not aware what happened on that night and how Wahid was killed. Thereafter he went to police station and gave information to the police, pursuant to which FIR was lodged at C.R. No. 272 of 2007 with Shivajinagar Police Station. The police conducted inquest and spot panchnama. They found axe lying on the spot. The post-mortem was conducted on the body of Wahid. After investigation, the police arrested the appellant and other accused. At the instance of co-accused Rana, who was juvenile in conflict with law, a shop from where the axe was purchased and the said shopkeeper were traced. So also the other shop where the blade of the axe was sharpened was also traced. The police drew panchnama to that effect. The clothes of the appellant/accused were also seized and sent for chemical analysis. The human blood was found in the clothes and on the blade of the axe. After completion of the investigation, the police filed charge-sheet in the Magistrate court. Thereafter the matter was committed to the Sessions Court. The learned Sessions Judge framed charge. The accused pleaded not guilty, as they were not present in the room when the incident has taken place and that they are innocent and not committed any offence. The learned trial Judge rejected the said defence and after appreciating the evidence of the prosecution, convicted accused No. 1 as mentioned above. Accused No. 2, being juvenile, was not tried before the learned Sessions Judge. Hence, this Appeal.
(3.) The case of the prosecution is entirely based on circumstantial evidence. The prosecution has examined total 12 witnesses. PW-1 Rashid Gazi Ahmed Gazi is a complainant who gave FIR which is marked as Exhibit 9. PW-2 Khan Altaf Atta Hussain Pathan, who is panch for the panchnama of the shop from where the axe was purchased (Exhibit 30) and also recovery of blood stains clothes (Exhibit 33). PW-3 Munir Abdul Jabbar Shaikh is a shopkeeper from where the axe was purchased. PW-4 Pawankumar Siyaram Vishwakarma is a shopkeeper from where the blade of the axe was sharpened. PW-5 Ayofar Gazi, PW-6 Shaikh Mastan Ali Abdul Sattar is panch of inquest panchnama (Exhibit 18) and spot panchnama (Exhibit 19), PW-7 Dr. Pravin Sakharam Bagul who carried out postmortem, PW-8 Madhukar Pralhad Bage, Metropolitan Magistrate, who recorded statement of juvenile accused Rana @ Samir on 18th October, 2007 under section 164 of Cr. P.C. PW-9 Santosh Dnyaneshwar Bhandara, P.I. attached to Shivaji Nagar Police Station, PW-10 David Dadu Alhat, P.S.I. who recorded FIR of PW-1, PW-11 Sunil Rajaram Ghosalkar, P.S.I., Crime Branch. Thane where panchnama of purchase of axe and sharpening of blade of axe was drawn and who called panchas. PW-12 Sharad Nilkanth Shalu is a finger print expert.;