http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (crl.)  1391 of 1999

PETITIONER: NASIR SIKANDER SHAIKH

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 05/05/2005

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T

B.P. SINGH,J.                  In 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 imprisonme nt.    It maintained the sentence of fine.         With the assistance of counsel appearing for the parties, we have gone through the  evidence on record.         The 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.     That altercation was followed by  PW2 slapping the appellant.   This occurrence took place a t  4.00 p.m.  Later  at 9.00 P.M. when PWs 2 and 3 closed their shop and left for their house o n a  scooter driven by PW2, the appellant along with one Ravindra Swamy accosted them on the way.    Ravindra 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 a nd  ultimately the appellant along with Ravindra Swamy was put up for trial before the Additiona l  Sessions Judge, Pune being Sessions Case No.317 of 1990.         At the trial the prosecution relied upon the evidence of PWS 2 and 3.   It also reli ed  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 o f doubt  to the co-accused Ravindera Swamy since his name did not find mention in the First Informati on  Report and, therefore, his complicity in the occurrence appeared to the trial court to be do ubtful.         On appeal preferred by the appellant, the High Court affirmed the order of  conviction but reduced the sentence as earlier noticed.         Counsel for the appellant submitted that the appellant had also received injuries in   the course of the said occurrence which remained unexplained by the prosecution.         We have examined the evidence on record.    This submission has no force because in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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 ingre dient  of the offence,  while the defence   has only to probabalise the defence taken, there must b e some  material on record to support the defence plea and probabalise its case.   We find that comp letely  lacking in this case.   Moreover, PW2 is an injured witness who was the victim of the assaul t 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.            The appeal is dismissed.            The appellant was released on bail by this Court pending the appeal.   His bail bond s  are cancelled and he is directed to be taken into custody forthwith to serve out the remaind er of  the sentence, having regard to the provisions of Section 428 of the Code of Criminal Procedu re.