MOHD. JAHIR PUTTAN KHAN Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) The appellant-original accused assails the judgment and order dated 17.10.2005 passed by the learned 7th Ad Hoc Addl. Sessions Judge, Sewree, Mumbai in Sessions Case No. 307 of 2004, convicting him for murdering one Mehnaz Istikhar Khan and mother-in-law Smt. Zaheeda Bano and for attempting to commit the murder of PW-4 Arif Istikhar Khan and sentencing him to suffer imprisonment for life for an offence of murder and also to suffer rigorous imprisonment for five years for the offence of attempt to commit murder. According to the prosecution, at the relevant time, one Istikhar Khan was residing in Room No. 27, Mantan Pada, Mohd. Hussain Chawl, Poisar along with his wife Zaheeda (deceased), daughter Mehnaz (deceased), son Arif (PW-4) and son-in-law, i.e., appellant. The appellant and PW-4 Arif were assisting Istikhar Khan in his business of selling of Onions and Potatoes at Poisar.

(2.) The appellant pleaded not guilty to the charge (Exh. 5) for offence under Sections 302 and 307 of I.P.C. framed against him by the Court of Sessions, after the case was committed to the said Court. In addition to the witnesses referred hereinabove, the prosecution examined seven more witnesses, i.e., PW-1 Rakesh Mann, PW-2 Asif Shaikh, PW-5 Dr. Baban Shinde, PW-6 Dr. Sanket Mehta, PW-7 Bhagwan Singh, PW-8 Mohd. Miraz Khan, and PW-9 Dr. Rajesh Dere. The defence of the appellant was of total denial. Though the appellant admitted his presence at the relevant night in the room No. 27, he contended that some unknown persons assaulted Zaheeda, Mehnaz and Arif (PW-4). The trial Court after assessment of prosecution evidence came to the conclusion that the appellant committed murder of Zaheeda and Mehnaz by intentionally causing them injuries by means of cement-block and also attempted to commit murder of PW-4 Arif, inconsonance with such finding arrived, the trial Court convicted and sentenced the appellant.

(3.) Mr. Abhay Kumar Apte, the learned appointed counsel for the appellant, submitted that no evidence has been surfaced at the trial leading to inference of the guilt of the appellant for the offences in-question as erroneously concluded by the trial Court. He urged that PW-4 Arif having not supported the prosecution and there being no other eye-witnesses, the trial Court rested conviction upon the circumstances said to have been established by the prosecution. The learned counsel by meticulously taking us through the evidence of each of the witnesses taken into consideration by the trial Court for coming to the conclusion of having established particular circumstance, urged that the said evidence is not sufficient to reach to the conclusion as arrived. It was urged that the trial Court erroneously put the reliance upon the evidence of hostile witness, i.e., PW-4 Arif. It was urged that further error was committed by the trial Court in taking into consideration the explanation given by the appellant during his examination under Section 313 of Code of Criminal Procedure. It was urged that apart from the same, even the trial Court misconstrued the explanation given by him and drew unwarranted inferences upon the matter, which were not duly established.