ANWAR HUSSAIN MOHAMMED SHABBIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT who was the accused before the trial court has challenged his conviction under section 302 of IPC by which he was sentenced to undergo life imprisonment, under section 436 of IPC he was sentenced to undergo R. I. for 3 years and fine of Rs. 1,000/- in default R. I. for one year, and under section 201 r. w. 511 of IPC he was sentenced to undergo R. I. for 3 years.

(2.) AS per the prosecution case accused is a friend of Ansar Ali who was the husband of Jaibunissa. Ansar Ali and Jaibunissa had four children. Thereafter, Ansar Ali was apprehended in narcotic matter and was in jail, where the accused is alleged to have developed friendship with him. This accused started visiting Jaibunissa and there were illicit relations between them. Jaibunissa's father Gayasuddin did not like this relationship and reprimanded his daughter about the same. He also warned the accused not to visit Jaibunissa because if Ansar Ali came back from Jail, the same would create serious problems. Jaibunissa however, did not like the advice given by her father, and who boycotted her house.

(3.) IT was urged by Mr. Tulpule counsel for the appellant-accused that firstly the prosecution is totally silent regarding the motive behind the murder because according to him if the accused was having illicit relations with Jaibunissa then he had no reason to first kill her and then to burn her. Secondly, according to Mr. Tulpule the conduct of the accused, namely, his remaining present after the alleged murder clearly indicates to the innocence of the accused because if the accused had murdered Jaibunissa there was no reason for him to wait or to burn her body. Thirdly, according to Mr. Tulpule, there are circumstances in the prosecution case which have not been explained by the prosecution satisfactorily, namely, finding of walking stick, finding of the hammer in the drawer. According to Mr. Tulpule walking stick indicates that father of Jaibunissa had visited the house on that day, though the fact was denied by the prosecution witnesses, and this therefore proves that somebody else was responsible for the murder of Jaibunissa. So far as hammer is concerned, as per panchanama it was found in an open drawer below certain clothes, therefore, according to Mr. Tulpule if the accused had killed Jaibunissa with the said hammer, he would not have taken care and caution to hide it below the clothes. Fourthly according to Mr. Tulpule presence of the accused in the house cannot be said to be indicative of his guilt because accused was a neighbour and he had gone to extinguish the smoke coming from the house of Jaibunissa and therefore merely from his presence it cannot be said that it was the accused who committed murder. So far as evidence of two child witnesses is concerned, it was contended by him that P. W. 3 Shaikh Mohammed Hanif was a minor and is a got up witness, and secondly the daughter of Jaibunissa which was examined as P. W. 6 Dilsaaz had not spoken about the hammer blow given by the accused, though she has spoken about the burning of Jaibunissa's body by the accused and therefore there is material omission in the evidence of the said witness, the benefit of which was liable to be given to the accused. So far as the blood stains found on the person of the accused are concerned, it was contended by Mr. Tulpule that if Jaibunissa was given a blow of the hammer, admittedly blood had spread on the floor and if according to the prosecution witnesses the accused was thrust from outside in the house, was made to sit on a cot, then it was likely that in this scuffle the accused got the blood stains on his clothes. Therefore, considering all the circumstances according to Mr. Tulpule the Judgment of conviction was liable to be set aside and the accused was entitled for acquittal.