Shaikh Vs. State of Maharashtra  Insc 317 (5 May 2005)
Singh & Arun Kumar B.P. Singh,J.
this appeal by special leave the appellant has challenged his conviction under
Section 307 IPC. The trial court sentenced him to undergo 4 years rigorous
imprisonment and to pay a fine of Rs.500/- and in default to undergo two months
rigorous imprisonment. The High Court by its impugned judgment and order of 11th November, 1988 in Criminal Appeal No.311 of 1991
upheld the conviction but reduced the sentence to 2 years rigorous
maintained the sentence of fine.
the assistance of counsel appearing for the parties, we have gone through the
evidence on record.
case of the prosecution is that on 20th May, 1990 at about 4.00 P.M. an
altercation took place between PWS 2 and 3 on the one hand, and the appellant
on the other.
altercation was followed by PW2 slapping the appellant. This occurrence took
place at 4.00 p.m. Later at 9.00 P.M. when PWs 2 and 3 closed their shop and left for their house
on a scooter driven by PW2, the appellant along with one Ravindra Swamy
accosted them on the way.
Swamy hit the scooter with an iron rod as a result of which PW2 and PW3 fell
down, whereafter the appellant is said to have stabbed PW2 with knife in his
abdomen. PW2 was taken to the hospital. On the basis of the report lodged by
PW3 the case was investigated and ultimately the appellant along with Ravindra Swamy
was put up for trial before the Additional Sessions Judge, Pune being Sessions
Case No.317 of 1990.
trial the prosecution relied upon the evidence of PWS 2 and 3. It also relied
upon the recovery of weapon of offence, namely, a knife at the instance of the
appellant. On chemical examination, it was found that the knife had human blood
on it of 'AB' group which was the blood group of the injured. Relying upon the
aforesaid evidence, the trial court convicted the appellant of the offence
under Section 307 IPC. It, however, gave benefit of doubt to the co-accused Ravindera
Swamy since his name did not find mention in the First Information Report and,
therefore, his complicity in the occurrence appeared to the trial court to be
appeal preferred by the appellant, the High Court affirmed the order of
conviction but reduced the sentence as earlier noticed.
for the appellant submitted that the appellant had also received injuries in
the course of the said occurrence which remained unexplained by the
have examined the evidence on record. This submission has no force because in
the first instance, there is no evidence on record to prove that the appellant
had received any injury. Moreover, there is no suggestion made to PWS 2 and 3
that they had assaulted him as a result of which he had suffered any injury. In
the absence of any such suggestion to the prosecution witnesses, the argument
which is not supported by any evidence on record, cannot be accepted. While it
is true that burden is heavy on the prosecution to prove every ingredient of
the offence, while the defence has only to probabalise the defence taken, there
must be some material on record to support the defence plea and probabalise its
case. We find that completely lacking in this case. Moreover, PW2 is an injured
witness who was the victim of the assault and PW3 was accompanying him. Two
courts below have concurrently found their evidence to be acceptable, and we
find no reason to take a different view.
appeal is dismissed.
appellant was released on bail by this Court pending the appeal. His bail bonds
are cancelled and he is directed to be taken into custody forthwith to serve
out the remainder of the sentence, having regard to the provisions of Section
428 of the Code of Criminal Procedure.