SUPREME COURT OF INDIA

Before:-K.T. Thomas and S.N. Phukan, JJ.

Criminal Appeal No. 996 of 1999 with No. 512 of 2000. D/d. 15.1.2002.

Mashak Ali Mohammed - Appellant

Versus

State of Meaharashtra - Respondent

Indian Penal Code, 1860, Sections 302, 364, 367 and 394 read with Section 34 - Foreigners Act, 1946, Section 3(2)(e)(iii) - Abduction and Murder - No evidence that Appellant done any act in murder of deceased or that they were present at that time when deceased was strangulated - Due to paucity of evidence as against appellants and due to total insufficiency of circumstances conviction and sentence is set aside except offence under Foreigners Act - Hence, acquittal.

[Paras 6 and 7]

ORDER

K.T. Thomas and S.N. Phukan, JJ. :- This is a case of abduction and murder for gain.

The trial court convicted three foreign nationals for the offences under Sections 364, 367, 394 and 302 read with Section 34 of the I.P.C., besides the offence under Section 3(2)(e)(iii) read with Section 14 of the Foreigners Act. They were sentenced to undergo imprisonment for life on all the counts except for the offence under Foreigners Act for which a sentence of imprisonment for five years had been awarded. The High Court confirmed the conviction and sentence on all the counts passed on the three accused. A3-Rashid Mohammad Masood did not think it necessary to challenge the conviction which was confirmed as against him by the High Court but the remaining two persons (A1-Ramzan Mazuwa & A2-Mashak Ali Mohammad) have filed these appeals by special leave.

2. This case relates to an incident which happened on the 19th December, 1989 (next morning was 20th) in which one taxi driver by name Chanakya Jaiswal was killed by ligature strangulation.

3. The incident as described by the prosecution is this. The three accused arrived in India by the middle of November, 1989 but the visa period expired on 19th December 1989 and therefore the accused remaining in India thereafter was in violation of the provisions of Foreigners Act. During the wee hours of 20th December, 1989 they hired a taxi from the Victoria Terminus, Mumbai. The driver of the taxi was the deceased in this case. After boarding the taxi the accused had snatched away the wrist watch worn by the deceased and thereafter they killed him by ligature strangulation.

4. The case rested on circumstantial evidence alone. The circumstances pitted against the accused are the following:-

"1. All the three accused hired the taxi of the deceased during the early hours of 20th December, 1989;

2. The said taxi-car was found parked at a different place during the evening. When the car was broken open with the help of the police the body of the deceased was found lying inside;

3. The post-mortem examination conducted by PW18-Dr. Ashok showed that the deceased was strangulated to death;

4. The wrist watch of the deceased was sold by A3 to PW14 on the same day around noon."

5. Even if the above circumstances are all established there could be no possibility of convicting the two appellants before this Curt for any offence, except perhaps the offence under the Foreigners Act. The wrist watch of the deceased had been sold by A3 to PW14. Learned counsel for the State made an endeavour to contend that the present appellants were also privy to the said sale made to PW14. We fail to discern the said association of the appellants from the evidence of PW14. All that the said witness said as against the present appellants is that they were found at the market on 20th December, 1989. It was not elicited from the witness whether these three persons were found together at any time. Learned counsel then contended that all the three were trying to sell the wrist watch but PW14 did not state before the Court as to what act could be attributed to any one of the two appellants regarding the said attempt to sell the wrist watch. In the absence of any particular act attributed to any one of them it would be too vague a statement of PW14 that he found all the three trying to sell the wrist watch. We make it clear that PW14 has specifically attributed an act to A3-Rashid Mohammad Masood in the matter of sale of the wrist watch as the same was actually handed over to the witness by the said accused. PW14 did not say as to what the other two accused did or said with reference to the sale of the wrist watch.

6. Thus, barring the said vague statement in respect of the sale of the wrist watch the solitary circumstance which has now come in evidence as against the appellants is that they too were present when the taxi was hired and they all boarded the taxi-car together. The said evidence, perhaps may create a suspicion against the appellants that they could have had association with A3-Rashid Mohammad Masood. There is no evidence that they had done any act in the murder of the deceased or that they were present at that time when the deceased was strangulated.

7. Due to the paucity of evidence as against the appellants and due to the total insufficiency of the circumstances as against them we are compelled to interfere with the conviction and sentence passed on the appellants for all the offences except the offence under the Foreigners Act.

8. We, therefore, allow these appeals and acquit the appellants under all the counts of offences except under Section 3(2) of the Foreigners Act. If they had completed the jail term for which they were sentenced for the offence under the Foreigners Act, it is for the jail authorities to release them from jail.

The appeals are disposed of accordingly.

Appeals allowed.