Full Judgment Text
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CASE NO.:
Appeal (crl.) 1391 of 1999
PETITIONER:
NASIR SIKANDER SHAIKH
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 05/05/2005
BENCH:
B.P. SINGH & ARUN KUMAR
JUDGMENT:
J U D G M E N T
B.P. SINGH,J.
In this appeal by special leave the appellant has challenged his conviction under
Section 307 IPC. The trial court sentenced him to undergo 4 years rigorous imprisonment
and
to pay a fine of Rs.500/- and in default to undergo two months rigorous imprisonment. The
High Court by its impugned judgment and order of 11th November, 1988 in Criminal Appeal
No.311 of 1991 upheld the conviction but reduced the sentence to 2 years rigorous imprisonme
nt.
It maintained the sentence of fine.
With the assistance of counsel appearing for the parties, we have gone through the
evidence on record.
The case of the prosecution is that on 20th May, 1990 at about 4.00 P.M. an
altercation took place between PWS 2 and 3 on the one hand, and the appellant on the other.
That altercation was followed by PW2 slapping the appellant. This occurrence took place a
t
4.00 p.m. Later at 9.00 P.M. when PWs 2 and 3 closed their shop and left for their house o
n a
scooter driven by PW2, the appellant along with one Ravindra Swamy accosted them on the way.
Ravindra Swamy hit the scooter with an iron rod as a result of which PW2 and PW3 fell down,
whereafter the appellant is said to have stabbed PW2 with knife in his abdomen. PW2 was
taken to the hospital. On the basis of the report lodged by PW3 the case was investigated a
nd
ultimately the appellant along with Ravindra Swamy was put up for trial before the Additiona
l
Sessions Judge, Pune being Sessions Case No.317 of 1990.
At the trial the prosecution relied upon the evidence of PWS 2 and 3. It also reli
ed
upon the recovery of weapon of offence, namely, a knife at the instance of the appellant.
On
chemical examination, it was found that the knife had human blood on it of ’AB’ group which
was the blood group of the injured. Relying upon the aforesaid evidence, the trial court
convicted the appellant of the offence under Section 307 IPC. It, however, gave benefit o
f doubt
to the co-accused Ravindera Swamy since his name did not find mention in the First Informati
on
Report and, therefore, his complicity in the occurrence appeared to the trial court to be do
ubtful.
On appeal preferred by the appellant, the High Court affirmed the order of
conviction but reduced the sentence as earlier noticed.
Counsel for the appellant submitted that the appellant had also received injuries in
the course of the said occurrence which remained unexplained by the prosecution.
We have examined the evidence on record. This submission has no force because in
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the first instance, there is no evidence on record to prove that the appellant had received
any
injury. Moreover, there is no suggestion made to PWS 2 and 3 that they had assaulted him as
a
result of which he had suffered any injury. In the absence of any such suggestion to the
prosecution witnesses, the argument which is not supported by any evidence on record, cannot
be accepted. While it is true that burden is heavy on the prosecution to prove every ingre
dient
of the offence, while the defence has only to probabalise the defence taken, there must b
e some
material on record to support the defence plea and probabalise its case. We find that comp
letely
lacking in this case. Moreover, PW2 is an injured witness who was the victim of the assaul
t and
PW3 was accompanying him. Two courts below have concurrently found their evidence to be
acceptable, and we find no reason to take a different view.
The appeal is dismissed.
The appellant was released on bail by this Court pending the appeal. His bail bond
s
are cancelled and he is directed to be taken into custody forthwith to serve out the remaind
er of
the sentence, having regard to the provisions of Section 428 of the Code of Criminal Procedu
re.