MUSHTAQ ABDUL MAJEED SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Appellant is the original accused. By this appeal the appellant/ accused challenges the judgment and order passed by the Court of Sessions for Greater bombay in Sessions Case No. 766 of 1997. By the said judgment and order dated 22nd september, 1998 the Sessions Judge has convicted the appellant for an offence punishable under section 302 of the Indian penal Code and sentenced him to suffer R. I. for life and further imposed a fine of Rs. 5,000/- and in default of payment of fine, the accused was to further undergo R. I. for three months. The appellant/accused was further found guilty for the offence punishable under sections 394 and 449 of the Indian Penal Code and was sentenced to suffer R. I. for 5 years on both the counts and to pay fine of Rs. 1,000/- and in default of payment of fine to further undergo sentence of one month.

(2.) Being aggrieved by the said judgment and order, the appellant has preferred this appeal. The brief facts, which are relevant for the purpose of this appeal, are as under :- the case of the prosecution, in brief, is that on 15th March, 1997 the accused committed a murder of Kaluram Gumaji Jain who was sleeping in the shop at that time and also committed robbery and stole cash, gold and silver ornaments worth Rs. 92,000/- from the said shop M/s. D. B. Jewellers situated at ashtavinayak Building, D. L. Marg, chinchpokli, Mumbai. The prosecution case is that on the date of incident, Bhawarlal kaluram Jain, who was the owner of the shop, left the shop at around 1.30 in the afternoon. Before he left the shop, his wife Manjula had brought a tiffin for his father Kaluram. Thereafter Bhawarlal and his wife left the shop while Kaluram remained in the shop, after closing the gates of the shop. The story of the prosecution is that P. W. 4 Chhaganlal saw a person leaving the shop and the said person was wearing a red motor cycle helmet. Chhaganlal was suspicious and asked the name of that person. However, that person ran away on his motor cycle. He was chased for some time by some of the witnesses, however, he could not be apprehended. In the mean time chhaganlal went inside the shop and found that kaluram was lying in an unconscious state and wire was wrapped around his neck. Thereafter the accused was arrested on 30th March, 1997 and, the gold and silver ornaments were recovered at his instance. He was also identified by P. W. 4 in the test identification parade which was held by the Special executive Magistrate. Charge-sheet was filed against the accused. The trial Court, after appreciating the evidence on record, which was adduced by the prosecution, convicted the accused for the offence punishable under section 302 of the Indian Penal Code and for the offence punishable under Sections 394 and 449 of the Indian Penal Code.

(3.) The learned counsel appearing for the appellant submitted that so far as the offence of murder is concerned, there was absolutely no evidence against the appellant. He submitted that the prosecution had relied upon the circumstantial evidence and that chain of circumstances, on which the reliance was placed by the prosecution, did not point towards the guilt of the accused. He further submitted that there was a delay in holding the identification parade. He also submitted that the guidelines, which have been laid down by the high Court in the Criminal Manual for the purpose of holding test identification parade, were not followed and, therefore, reliance could not be placed upon the said test identification parade. He submitted that even otherwise it was impossible for P. W. 4, who has recognized the accused, to identify him as the accused was wearing a helmet and P. W. 4 had not given any description of the accused at that time nor did he give his name or physical features were also not disclosed by P. W. 4. He submitted that therefore this entire evidence is liable to be discarded. He further submitted that so far as recovery of ornaments is concerned, the prosecution had not proved beyond reasonable doubt that the ornaments were recovered at the instance of the accused. He further submitted that the ornaments were recovered from a scooter which was parked at Agripada and the said vehicle was a stolen vehicle and in respect of the said vehicle a case was pending in the Court. He submitted that on the ground of Issue estoppel benefit ought to have been given to the accused and, that the prosecution was estopped from relying on the said circumstance.