STATE OF MAHARASHTRA Vs. GULAM NABI SK MAHEBOOB

JUDGEMENT

(1.) By this appeal, the State/appellant has challenged the judgment and order made by the Additional Sessions Judge, Akola, dated 6.3.1996, in S.T. No.28 of 1993, acquitting the respondents/accused of the charge of murder under Section 302 read with Section 34 of Indian Penal Code.

(2.) Respondents 1 and 4 died during the pendency of appeal and, therefore, the appeal against them abated. Thus the appeal survives only against respondents 2 and 3. With the assistance of learned A.P.P. for the appellant/State, Mr.Mujumdar, we went through the impugned judgment as well as records and proceedings. Mr.Mujumdar argued that the learned trial Court has disbelieved the prosecution story and acquitted the respondents only on the ground that the case is based on solitary testimony of P.W.3 Mohd.Kalim, the brother of deceased Salim Fateh Mohammad Chaudhari. He then argued that there are two dying declarations . one recorded by police and the other recorded by the Executive Magistrate, which have been rejected on untenable grounds. According to him, minor variations cannot lead to acquittal. The counsel for respondents 2 and 4 remained absent.

(3.) We are aware that conviction can be based even on the sole testimony. Further, it is no ground to reject the evidence of an eye witness merely because he happens to be relative of the deceased. However, testimony of such a witness has to be scrutinised carefully. In this back drop of legal principle, we find that the sole witness P.W.3 Mohd. Kalim, who is the real brother of the deceased, has testified as an eye witness but the material portion from his evidence has been found to be omission amounting to contradiction regarding respondents 2 and 3 holding the deceased. The spot of incident has been changed from the shop of the deceased to the shop of the accused persons, which are located at a distance of near about 100 feet. On the contrary, there is a material variance regarding the spot of incident in the two dying declarations (Exs. 24 and 35). In Ex.24 the spot of incident is said to be the shop of the accused persons and the story narrated therein by the deceased is entirely in a different manner. In Ex.24 what is stated is that the accused Gulam Sheikh came to the shop of the deceased and called him. He then took him to his shop where his three sons were present and thereafter the incident of assault occurred. As against this, in Ex.35, what is stated is that Gulam Nabi came in the shop of the deceased with his father Gulam Maheboob and son Jabbar. In his shop they threw acid on him and then assaulted him on his abdomen with a knife. This was recorded by the Executive Magistrate. Police also drew spot panchanama treating the spot of incident as shop of accused persons. Thus the ocular evidence and the dying declarations which are pressed into service by the prosecution do not inspire confidence of this Court as well. Chemical analyser's report does not show that any blood was detected on the weapon with which the deceased was allegedly stabbed on his abdomen. The Doctor did not depose that the injuries that were caused, were sufficient in the ordinary course of nature to cause death.