Inayattulla Minoddin Shaikh vs State Of Maharashtra
2004 Latest Caselaw 38 Bom

JUDGMENT

V.G. Palshikar, J.

1. Being aggrieved by the Judgment and order dated 18-12-1998 passed in Sessions Case No. 333/97 by the Additional Sessions Judge, Pune convicting the accused under Section 302 of IPC and sentencing him to suffer imprisonment for life, the appellant has preferred this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by Shri Toraskar the learned advocate appointed to defend the appellant.

2. With the assistance of the learned counsel for the appellant and the learned A.P.P. we have scrutinised the record and reappreciated the evidence on record. On reappreciation of evidence on record the prosecution story is disclosed, is stated briefly as under :

3. On 1-7-1997 around noon, deceased Jaysing went near Darga situated in the locality where he has residing alone. There it is alleged that the appellant-original accused tried to have unnatural intercourse with him and seeing resistance stabbed him. He some how managed to come out of the place and fell near the tree. 3/4 persons saw him so falling and enquired from him as to how he has sustained injury. The reply of the victim was he was stabbed by Baba. The persons who saw this, reported the matter to the family of the deceased and complained to the police. The victim was taken to the hospital where during the course of treatment succumbed to the injuries. Police investigated the complaint as disclosed by the FIR, arrested the accused who was Shaikh Baba residing in the Darga and on completion of the investigation charge sheeted the accused under Section 302 of IPC for murdering Jaising the deceased.

4. The accused denied the guilt and claimed to be tried. During the trial, 13 witnesses were examined by the prosecution to prove that the accused was the person who stabbed the victim. On appreciation of the evidence of these witnesses and such other documentary evidence as is existing on record, the learned trial Judge convicted the accused as aforesaid which order is impugned in this appeal.

5. Shri Toraskar the learned advocate appointed to defend the accused-appellant, contended before us that this is a case where conviction rests solely on circumstantial evidence. There are no eye-witnesses, no motive whatsoever is proved by the prosecution and in the circumstantial evidence as rendered by the prosecution several links are missing. It is therefore not possible to sustain the order of conviction, according to the learned counsel. The missing links as alleged by the learned advocate are :

(1) No motive is proved.

(2) None of the witnesses who saw the victim falling state as to which Baba was referred to by the deceased.

(3) All the persons agree that there were two Babas.

(4) The persons who heard the deceased saying that he was hit by Baba, do not provide the link with the Baba mentioned by the victim was the same as the accused.

(5) There is no evidence to link the accused to the statement made by the deceased.

It was also contended by the learned counsel that merely because there are blood stains in the lungi of the accused recovered at his instance, it cannot be said, that he is connected with the crime because, the blood stains are not analysed or proved to be of the group to which the deceased belong. The knife recovered has no blood stains and ac cording to the learned counsel these are the missing links in the chain of circumstantial evidence because of which the accused is entitled to an acquittal.

6. The learned Additional P. P. appearing for the State contended by pointing out that the recovery of knife and the blood stained lungi did connect the accused to the crime. There is no doubt that two persons by name Baba are staying in the vicinity. But the Baba who stabbed the victim was the accused was not stated by the prosecution. According to the ld. APP, there is therefore no reason to interfere with the order of conviction.

7. As aforesaid we have scrutinised the evidence on record. The death of the victim was homicidal, is undoubtedly proved. We have scrutinised the evidence of the three persons, who were present near the tree where the victim fell and in whose presence the victim stated that he was stabbed by Baba, All the three witnesses cohensively stated that the victim has stated that he was stabbed by Baba. They corroborated each other but none of them proved as to which of the two Babas was mentioned by the victim. Even if their entire evidence is accepted, it is difficult to believe that they referred to the accused.

8. In cases where conviction is to rest on circumstantial evidence, it is an established principle of law that the prosecution must prove all the links of the chain of circumstantial evidence beyond reasonable doubt. The first link therefore is existence of motive. There is total absence of evidence in this regard in the entire record. It is only suggested that the accused desired unnatural cohabitation with the victim and the refusal resulted in the assault. But there is no evidence whatsoever on record to suggest that this is the case. In our opinion it appears to be an attempt on the part of prosecution to prove some motive to justify the attack. The person of the victim was examined and no such unnatural attempt is proved. In fact the evidence is clear. There is no suggestion of any such attack by any of the witnesses. There is therefore no evidence on record to prove the unfulfil desire of unnatural intercourse was the motive. The first link of requirement of motive is therefore missing.

9. The second important link is that the prosecution must prove such circumstantial evidence, is the connection between the injured and the act of assault and the fact that accused is the perpetrator thereof. It is true that all the witnesses stated that they were told by the victim that victim was assaulted by Baba, but which of the two Baba is assaulted the victim is not made clear by any of the witnesses. In such circumstances, the prosecution cannot be said to have proved beyond reasonable doubt the circumstances unequivocally pointing out to be the accused as a perpetrator of the crime.

10. The learned trial Judge has accepted the evidence of the three persons who has no motive. The fact that Baba who is the real assailant is not identified. There is therefore missing an important link. In the circumstances, we find it difficult to justify the order of conviction. In the result therefore the appeal succeeds and is allowed. The accused is acquitted of the offence of murder with which he is charged. He be released immediately if not required in any other case.

11. The office is directed to expedite the issue of writ of acquittal.