2009(5 )  SCR 483   

SOHEL MEHABOOB SHAIKH v.

STATE OF MAHARASHTRA (Criminal Appeal No. 1080 of 2007)

APRIL 17, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT,  J.  1. Challenge in this appeal is to the judgment and  

order  dated  3.4.2007  passed  by  a  Division  Bench  of  the  Bombay  High  Court  

upholding the conviction and sentence of the appellant for commission of offence  

punishable under Section 302 read with Section 34, Section 498A and Section 323  

read with Section 34 of the Indian Penal Code (in short 'I.P.C.').

2. Originally there were five accused persons. Out of them, A-2, A-4 and A-5  

were  acquitted  by  the  Trial  Court  under  Section  235  of  the  Code  of  Criminal  

Procedure, 1973 (in short 'the Code') of the charges relating to offences punishable  

under Sections 498A and 323 of the I.P.C. while the appellant herein and A-3 were  

convicted for the offence punishable under Section 302/34 of the I.P.C.  

3. By the impugned judgment the High Court set aside the conviction of A-3 but  

upheld the conviction of the present appellant under Section 302 of the I.P.C.  

4. The case of the prosecution is based on certain circumstances and the Trial  

Court  and  High Court  found  those  circumstances to  be  sufficient  to  warrant  the  

conviction of the appellant.  The High Court found that the accusations for  dowry

torture were not established and therefor, it  acquitted the appellant of the charge  

relating to Section 498A of the I.P.C.  

5.  The  judgment  of  the  High  court  is  assailed  on  the  ground  that  the  

circumstances  highlighted  by  the  Trial  Court  and  the  High  Court  do  not  form a  

complete chain in order to rule out the innocence of the accused and to unerringly  

point at the accused to be author of the crime.  

6. The counsel for the respondents on the other hand, supported the judgment  

of the High Court.  

7.  The  three  circumstances  brought  on  record  by  the  prosecution  and  

highlighted by the Trial Court and High Court are as follows:

“(i) Deceased Sofiya met with an unnatural death;

(ii)  Deceased  Sofiya  had  died  in  the  room  which  was  solely  and  

exclusively occupied by her and her husband i.e. accused No.1;

(iii)  The  appellant  has  not  offered  any  explanation  in  respect  of  the  

incident in which deceased Sofiya had sustained burns.”

8. We have gone through the evidence on record and we find that the High  

Court has arrived at some conclusions which, in our opinion, are based on surmises  

and conjectures, without there being any evidence to support the conclusions. That  

being so, we find that the charge against the appellant has not been established.  

9. The first and third circumstances cannot be considered to be relevant either  

separately or collectively. So far as the second circumstance is concerned, there is  

no evidence to show circumstantially that accused was present in the room at the

time of occurrence. The time of occurrence, even by approximation has not been  

established by the prosecution.  

10. We, therefore, set aside the judgment of conviction recorded by the Trial  

Court and upheld by the High Court. The appeal is allowed.  

11. The appellant is in jail. He is directed to be set at liberty forthwith, unless  

required in connection with any other case.