Case: Zahir Ahmed Saeed Ahmed Mistry & Others Vs. The State of Maharashtra


Decision:
1[ds]In our considered opinion, the appellants cannot be held guilty for and only on this count. The prosecution has failed to establish the fact that the possibility of any other person other than the accused persons committing the murder of Adil, cannot be ruled out by leading succinct and cogent evidence in that behalf. It is also to be noted here that though the accused no.1 in presence ofpointed out the place where the dead body of Adil was thrown, the police of Manor police station were already aware of the said spot and therefore pointing of place by the accused no.1 loses its significance. The lapse ofbetween the two investigating agencies cannot be held to be an aggravating circumstance against the accusedthe present case also as we have stated in the forgoing paragraph,Kishor Dadhich was a total stranger to the accused persons and the accused persons on two occasions confiding with him and making an extra judicial confession about their guilt, is highly improbable.was neither their friend nor of acquaintance with whom they can easily make confession. It is further worth to be noted that even after the accused persons made confession with the said5 did not report to the police immediately.has given clarification that as the accused no.4 has requested him not to mention the same to the police with a view to save his reputation, is unacceptable. We find the testimony ofis untrustworthy and unreliable.35. This leads us to last circumstance of discovery of incriminating articles at the instance of accused nos.2 and 3 from the Advent Pharma Company. The date of incident in the present case is stated to be between 15th November 1984 and 16th November 1984. The articles belonging to Adil Rashid were discovered at the instance of accused nos.2 and 3 from the Advent Pharma Company at Vapi on 20.3.1985 i.e. after about four months from the date of incident. It is to be noted here that the contemporaneous documents i.e. memorandum panchanama Exhibits 33 and discovery panchanama Exhibitare absolutely silent about the specification of the ditch/pit from where the accused no.3 Guddu discovered nylon strings, 10 torn pieces of Western railway season ticket, 9 pieces of torn visiting card, four torn pieces of photograph of a girl etc. It is to be noted here that the evidence ofand the said contemporaneous documents Exhibits 33 andare absolutely silent about the condition of the said articles found after a gap of four months that whether those were degraded, decomposed/smeared with soil or otherwise. The evidence depicts the picture that the said articles were in proper condition as if they were new. It is therefore very unsafe to rely on the evidence ofand those contemporaneous documents Exhibits 33 and(discovery panchanama) for basing the conviction of the accused persons on the said circumstance.36. In view of the above, we are of the considered opinion that the prosecution has not proved the guilt of the appellants satisfactorily and beyond all reasonable doubts. We therefore give benefit of doubt to the appellants and allow the present appeal and set aside the conviction and sentences awarded to the appellants. The bail bonds of the appellants stand cancelled.