MOHAMMAD JAVED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and order dated 8th July 2011 passed by the Sessions Judge-7, Aurangabad in Sessions Case No.161 of 2010, by which the Appellant was convicted for the offence punishable under Sec. 302 of the Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs. 1000.00 and in default to suffer further Rigorous Imprisonment for six months, and for offence under Sec. 376 of Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs. 1000.00 and in default to suffer further Rigorous Imprisonment for six months, and for offence under Sec. 377 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 10 years and to pay fine of Rs. 1000.00 and in default to suffer further Rigorous Imprisonment for six months, and under Sec. 366-A & 363 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 5 years and to pay fine of Rs. 500.00 and in default to suffer further Rigorous Imprisonment for three months, and under Sec. 201 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for 3 years and to pay fine of Rs. 500.00 and in default to suffer further Rigorous Imprisonment for three months, the present Appeal was preferred by the Appellant in this Court.

(2.) Facts:-

(3.) Arguments:- In support of the Appeal, Mr. A.K. Bhosale, learned counsel for the Appellant vehemently argued that no doubt the offences for which the Appellant was convicted are very very serious and grave. But then the prosecution failed to prove that it was the Appellant who had committed the said offences. The learned counsel for the Appellant submitted that the prosecution has the evidence of only PW-5 Shaikh Hasan Shaikh Bakshu for propagating theory of 'last seen' against the Appellant. Witness PW-5 is closely related to the complainant. The counsel submitted that except said evidence, there is no other evidence which is incriminating against the Appellant. The other evidence discussed by the trial Judge held to be incriminating against the Appellant, if carefully examined, it will be seen that the same is worthless and is not at all incriminating against the Appellant. The counsel submitted that clothes of deceased were not seized and what was seized was ash in front of the house of the Appellant as alleged, leading the prosecution nowhere. The clothes of the Appellant were seized but nothing was seen incriminating on the said clothes like blood stains or semen stains. Stone seized did not have any blood stains or any other stains nor house of the Appellant had blood stains anywhere, because the allegation was that offence was committed inside the house of the Appellant, by the Appellant. The learned counsel for the Appellant submitted that semen stains found on the quilt of the Appellant could not be said to be abnormal feature to hold the same to be as incriminating evidence against the Appellant. The Appellant was immediately arrested as he had not fled from his house but was doing his regular work. The Appellant was severely assaulted by the police, which is clear from the medical evidence on record, that he had received large number of contusions on the back side of his legs. The trial Judge convicted the Appellant on the basis of two injuries on the knees of the Appellant in the nature of abrasions. Looking to the business of the Appellant of collecting the scrap and selling it, and his status as labourer, and looking to the fact that he was severely assaulted by the police, the trial Judge could not have convicted him. The counsel then contended that there is evidence on record to show that other two persons were residing with Appellant in the same room and there is no investigation whatsoever about those two persons, as to whether they were involved in the offence or not. The learned counsel for the Appellant submitted that thus the only evidence which could be said to be against the Appellant is that of PW-5 Shaikh Hasan Shaikh Bakshu on the 'last seen' theory, and that too the said evidence is infirm in view of the time gap, namely the girl missing from 4.00 p.m and dead body found on next day morning at 6.00 a.m. in the thorny bushes, which is a long time gap. Learned counsel for the Appellant relied on the following decisions: