A man who had spent 9 years in jail in a murder case after he was sentenced to life imprisonment by a Sessions Court, was acquitted by the Bombay High Court on Wednesday [Madhukar Vijay Mali vs. State of Maharashtra]. .A Bench of Justices SS Shinde and Sarang V Kotwal held that the extra judicial confession of the co-accused (accused no. 1) cannot be the sole basis for conviction in the absence of other material. "In the present case there is no sufficient material against accused No.2 to reach independent conclusion that he had committed murder and, therefore, the confession of the co-accused cannot be pressed into service to form basis of his conviction.".Both the accused were convicted by Additional Sessions Judge for commission of the offences punishable under Sections 302 (murder) and 324 (causing hurt by dangerous weapons) read with Section 34 (common intention) of Indian Penal Code via a sessions court order dated 7 January 2021.It was alleged that they had first killed a man working at a restaurant after being refused service of liquor. They had then allegedly assaulted an employee at another restaurant just 100 metres away under similar circumstances.The counsel for appellant-accused, Abbas Z Mookhtiar, submitted that the discrepancies in evidence of prosecution witnesses showed that they were fabricating stories before the court. He also pointed out that no independent witnesses had been examined in the case..He further submitted that the basis of the prosecution's case, that the accused had assaulted the deceased and a witness after they were refused service of liquor by them, was not proved as none of the establishments where the victims worked, served liquor. Hence, he argued that the motive for the murder was not proved.He suggested that the evidence of recovery of iron hook, purportedly the murder weapon, at the instance of accused was not free from doubt as there was nothing to show that he could have gone home and concealed the iron hook considering that the police had been informed as soon as the assault on the witness had taken place.He then drew the court's attention to the fact that appellant-accused had not been arrested along with accused no. 1 although he was present. He also argued that since the assaulted witness had bled, and his blood group had not been ascertained, it could not be said with certainty that the blood on clothes recovered from appellant was that of the deceased. .Therefore, conviction of the appellant cannot be based solely on account of the extra-judicial confession of the co-accused. In this regard, Mookhtiar relied on the Supreme Court's judgment in Pancho vs State of Haryana..Additional Public Prosecutor GP Mulekar opposed these submissions. According to her, there was sufficient against both the accused. She submitted that the FIR was lodged in a timely manner and panchnamas were carried out one after the other without delay. She, therefore, argued that there was no scope for concocting a false story to implicate the accused.She also submitted that for some time, the appellant was not present at the spot after the witnesses had arrived and, therefore, there was a possibility that he could have gone home and concealed the weapon.Further, she claimed that in the given case, conviction could be based on the extrajudicial confession. She relied on the judgment of the Supreme Court in the case of Jagroop Singh Vs. State of Punjab to support her claim..The Court found no consistency about the presence of appellant when one of the witnesses had come to the spot. It found that appellant was arrested separately and the prosecution case did not provide a vital link about the time when he had accompanied accused No.1, and the time when he was actually arrested. "He was arrested in the morning of July 5, 2013. The recovery was made at his instance from his house on the next day evening i.e. on July 6, 2013. The whereabouts of accused No.2 between 5.00 a.m. to 7.30 a.m. are not clearly established," it noted..While examining the other circumstance against appellant regarding recovery of blood stained clothes of “B-Group”, the Court found that the blood group of the assaulted witness and the blood group of both the accused was not determined. Therefore, it held that circumstance cannot be held against either of the accused.Hence, the court opined that appellant-accused had rightly relied on the judgment of the Supreme Court in the case of Pancho to assert that conviction could not be based on the extra-judicial confession..It found that the evidence against the appellant-accused was not sufficient to convict him and he deserved to be given the benefit of doubt. It, therefore, proceeded to acquit him of all the charges.The conviction of accused no. 1 under Sections 302 and 324 read with section 34 of IPC was modified to conviction under Sections 304 (Part I)(culpable homicide not amounting to murder) and 324 of the IPC..[Read Judgment]
