Case: Shaikh Jabbar Vs. The State of Maharashtra

played the cards and lost Rs.50/- to Rs.60/-. Therefore, so far playing cards by the accused with this witness and other 3-4 persons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/- to Rs.60/- is denied by him in examination in cross. PW-17 in his cross examination stated that, PW-13 Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement by PW-13 before the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of PW-16 and PW-13 is considered and compared, so far presence of the accused and deceased is concerned, PW-16 in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence of PW-13 is perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the PW-16 and PW-13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that, PW-13 really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23. PW-11 was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement. PW-17 in his evidence stated that, PW-11 Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However, PW-11 has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence of PW-11 and also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recovery discovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of PW-4, PW-7, PW-11, PW-13 and PW-16 is considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence of PW-17 in his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e. PW-8 Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination of PW-8 would make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. The prosecution did examineJameer Khan Maheboobkhan Pathan to prove that, the deceased was lastly seen alive in the company of the accused till 7.45 p.m. on 14th September, 2010.in his examination in chief stated that, he know accused. On 14.09.2010 at about 7.30 to 7.45 p.m., he had seen the accused near brick kiln of Rahim Pathan. The brick kiln of Rahim Pathan is near about 20 to 25 feet away from their brick kiln. He heard sound of something lying in water of well, which is near about 20 feet away from brick kiln. On hearing sound, he went towards well. Accused was standing near by well. He asked accused as to what type of sound it was, he replied that, one stone fell in the well due to a push of his leg. Then, accused andreturned talking with each other towards their brick kiln. He further stated that, on next day, number of persons gathered near well. Then, he also went near well. Meanwhile Police also came. The dead body of one boy was taken out of well by Police. His both legs and hands were tied by thin rope i.e. Sutali. Then he came to know that, dead body is of Raju, son of accused. If the evidence of this witness is considered in its entirety, he had seen deceased in the company of the accused in between 7.30 to 7.45 p.m. The prosecution has not brought on record that, there was enough light so as to rule out the possibility of mistaken identify. According to this witness, he saw the accused near the brick kiln of Rahim Pathan, which is near aboutfeet away from their brick kiln. However, nowhere he stated that, he saw deceased Raju with the accused. As per the prosecution case, the deceased was seen lastly in the company of the accused on 14th September, 2010, and thereafter, dead body was recovered on 16th September, 2010. However, according tohe had seen the accused on 14th September, 2010, at about 7.30 to 7.45 p.m. and on next day, number of persons gathered near well and dead body of one boy was taken out from the well on 15th September, 2010. Said version of theis not consistent with the prosecution case that, the dead body was found and taken out from the well on 16th September, 2010.During the cross examination ofhe admitted that, he does not remember exact day of withdrawing the dead body from well but it was next day of his meeting with accused. Though this witness has stated in his cross examination that, he stated to the police that, accused was seen by him at 7.30 to 7.45 p.m., and he had seen the accused near brick kiln of Rahim Pathan, and said brick kiln is 20 feet away from their brick kiln, and after hearing sound, he went towards well and accused stated that, a stone fell in the well. He could not assign any reason as to why all these details were not written in his statement. Again in this respect, it would be relevant to see the evidence of7 in his cross examination stated that,Jameer has not specifically stated before him that, business of selling bricks is looked after by him as well as hisHe had seen accused at 7.30 to 7.45 p.m. near brick kiln of Rahim Pathan, which is 20 feet away from their brick kiln. After hearing sound, he went towards well. On his query, accused replied that, a stone fell in the well due to a push of his leg. Therefore, if the evidence ofis considered in its entirety, no reliance can be placed on his evidence to accept the prosecution case that, the deceased Raju was seen in the company of the accused on 14th September, 2010 in between 7.30 to 7.45 p.m.21. The prosecution further examinedso as to prove the circumstance that, deceased Raju was last seen in the company of the accused on 14th September, 2010, in between 6.30 to 6.45 p.m.in his evidence stated that, he know accused. On 14.09.2010, he was on his brick kiln at about 6.30 to 6.45 p.m. At that time, he saw accused along with his son Raju, were going towards brick kiln of one wahab. There is a well near brick kiln of Rahim Pathan. At the relevant time, he sawpersons were playing cards near brick kiln. They were playing cards on open space in between two brick kilns. On next day, he came to know that, Raju died by drowning in a well. If the evidence of this witness is carefully perused, he saw deceased Raju in the company of accused on 14th September, 2010, in between 6.30 to 6.45 p.m. However, he further stated that, on next day i.e. on 15th September 2010, he came to know that, Raju died by drowning in a well. The version ofthat, on next day i.e. on 15th September, 2010, he came to know that, Raju died due to drowning, is inconsistent with the prosecution story inasmuch as, as per prosecution case, the dead body of Raju was found in a well on 16th September, 2010. In his cross examination, he stated that, he stated before the police that,persons were playing cards near the brick kiln of Rahim Khan. However, he cannot assign reasons why said fact has not written specifically by police in his statement. If the evidence ofInvestigation Officer is perused,Hakeem Qureshi never stated specifically before him that, adjoining brick kiln was of Wahab, that he was at his brick kiln on 14.09.2010 at about 6.30 to 6.45 p.m., and saw the accused from that place, andpersons were playing cards near the brick kiln of Raheem Khan. Therefore, it appears that,has improved his version before the Court and the said improvement is material. Therefore, the evidence ofcannot be believed.22. The prosecution further examinedNaser Sherkhan Pathan so as to prove that, deceased Raju was seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. In his examination in chief, he stated that, on 14th September, 2010, near aboutmonths back, on Monday at about 6.00 to 6.30 p.m., he himself andpersons were playing cards. At that time accused along with his son had been to them. At that time, they were playing cards near brick kiln of his brother. Accused was in drunken condition. When he asked why he has brought his son, he replied that, his son insisted to take with him and he was crying, therefore, he brought him. He has also participated and played cards with them. He lost Rs.50/ai came at the said place at 6.45 p.m. Then they stopped playing. They all went away and accused with his son stayed there. However, in his cross examination, he stated that, Hakimbhai had come at about 6.45 p.m. Accused stayed there along with his son. However, he cannot assign any reason why said version is not appearing in his statement. He further stated in his cross examination that, it is not true to say that, on 14th day of 2010 accused along with his son had been to them, he played the cards and lost Rs.50/. Therefore, so far playing cards by the accused with this witness and otherpersons is concerned, his evidence in examination in chief that, the accused has played the cards and lost Rs. 50/is denied by him in examination in cross.in his cross examination stated that,Naseer Pathan has not stated specifically before him that, they were playing cards near the side of brick kiln of Rahim, accused was under drunken condition and Hakimbhai came about 6.45 p.m., and accused stayed back there along with his son. Therefore, improvement bybefore the Court in his statement that, they were playing cards near the side of brick kiln of Rahim and the accused was under drunken condition and then Hakimbhai came at about 6.45 p.m. and accused stayed back there along with his son, are material improvements, and therefore, his evidence cannot be believed so as to accept the prosecution case that, deceased Raju was last seen in the company of the accused on 14th September, 2010 in between 6.00 to 6.30 p.m. If the evidence of13 is considered and compared, so far presence of the accused and deceased is concerned,in her evidence stated that, deceased Raju after playing, came to his house in between 6.00 to 6.30 p.m. and then he had dinner. However, if the evidence ofis perused carefully, he stated that, he had seen deceased Raju in the company of the accused in between 6.00 to 6.30 p.m. near brick kiln of his brother. Therefore, there are two different version stated by the13 so far place of the presence of the accused and Raju in between 6.00 to 6.30 p.m. on 14.09.2010. Said two different versions go to the root of the case and makes it unbelievable that,really saw deceased with accused on 14th September 2010, in between 6.00 to 6.30 p.m.23.was examined by the prosecution to prove that, on 14.09.2010 at about 6.00 to 6.15 p.m. accused had been to his shop for purchasing Sutali i.e. thin rope. In his evidence, he stated that, accused came in his shop on 14th September, 2010 at about 6.00 to 6.15 p.m. for purchasing Sutali, and accordingly, he purchased the Sutali on that day. In his cross examination, he stated that, he narrated before the Police that, the accused had been to his shop at about 6.00 to 6.15 p.m. on 14th September, 2010, and purchased four thread, however, said portion is not written in his police statement.in his evidence stated that,Mohammad Anisoddin never stated before him that, accused had been to his shop at about 6 to 6.15 p.m. and purchased four threads. However,has stated in his statement that, accused has come to his shop at 7.00 p.m. It appears that, the Investigation Officer recorded the memorandum of statement of accused, and also done video recording of his disclosure of shop from which Sutali was purchased. However, upon considering evidence ofand also alleged memorandum statement given by the accused, in the light of relevant provisions of the Evidence Act, we are not prepared to believe alleged recoverydiscovery by the police at the instance of the accused.24. In the light of the discussion in the foregoing paragraphs, if the evidence of3 andis considered in its entirety, and if said version of the said witnesses compared with each other, in the light of the evidence ofin his cross examination, it leads to conclusion that, the prosecution has utterly failed to establish vital circumstance that, the deceased Raju was last seen in the company of the accused in between 6.00 p.m. to 7.45 p.m. and thereafter he was never seen. Sk. Mustak s/o. Sk. Ashef, who told the accused that, on the night of 14th September, 2010, Raju [deceased] slept at his house in Mohemmadiya Colony, and next day morning after having cup of tea left their house, ought to have been examined by the prosecution, who could have thrown light on entire prosecution case. Where the prosecution case entirely rests upon the circumstantial evidence, each circumstance in the chain of circumstance is required to be firmly established by the prosecution. However, the prosecution has not convincingly and by leading cogent evidence has established the vital circumstance that, the deceased Raju was last seen in the company of the accused before his death. If the evidence of the Medical Officer i.e.Dr. Pravin Shankarrao Deshmukh, who was examined as Medical Officer, Civil Hospital, Beed, at the relevant time is carefully perused, in his cross examination, he stated that, in column no. 21 against contents in stomach initially empty was struck out. The stomach was not empty but was having small amount of food. He further stated that, exact time of death can be gathered on the basis of food found in stomach. He deposed that, he has not noted in P.M. notes the exact time of death.25. Therefore, the cross examination ofwould make it abundantly clear that, it was possible for him to gather and mention exact time of death on the basis of food found in stomach. However, he has not noted time of death in P.M. notes. Since the prosecution case rests upon the circumstantial evidence, and in particular the deceased was last seen in the company of the accused on 14th September, 2010, in between 6.00 to 7.45 p.m., it was incumbent upon the Medical Officer to try to estimate time of death so as to find out correctness of the version of the prosecution witness on the point of the last seen together.26. In the light of the discussion in the foregoing paragraphs, we are of the opinion that, the appellant is entitled for benefit of doubt, the findings recorded by the trial Court, and conviction ordered cannot sustain.