CASE TITLE:
Shahaja @ Shahajan Ismail Mohd. Shaikh Vs State of Maharashtra
DATE OF JUDGEMENT:
July 14, 2022
PARTIES:
Petitioner – shahaja @ Shahajan Ismail Mohd. Shaikh
Respondent – State of Maharashtra
BENCH:
Justice A.M Khanwilkar
Justice J.B Pardiwala
SUBJECT
- The petitioner has filed the appeal by special leave, against the judgement and order passed by the High Court of Judicature at Bombay and Additional Sessions Judge, with regard to the conviction of the petitioner under section 302 of the Indian Penal Code, 1860.
ISSUES RAISED
- Whether the mere discovery of weapon at the instance of the accused lead to authorship of concealment of the same or use of the same?
IMPORTANT PROVISIONS
- SECTION 8 OF INDIAN EVIDENCE ACT: It speaks about the relevancy of the conduct of accused with regards to circumstances wherein such a conduct is influenced by any fact in issue or relevant fact.
- SECTION 27 OF INDIAN EVIDENCE ACT: It states that if any fact is disposed by the accused in custody, the same shall be considered as confession is determined with reference to the fact discovered.
ARGUMENTS ADVANCED BY THE PETITIONER
- The counsel of the petitioner submitted that the eye witnesses called were unreliable and considering the place and time of occurrence of the incident the same could not have been witnessed by the eye witnesses.
- The counsel further submitted that the delay in filing an FIR by the PW 1 also leads to doubt as the same failed to file the same as he got know it and also has made an FIR after the police took an action.
- The counsel further submitted that there was no reliance even on the fact that the discovery of weapon was at the instance of the convicted accused therein.
ARGUMENTS ADVNCED BY THE RESPONDENT
- The counsel of the respondent argued that the concurring findings of the facts recorded by the trial court and high court cannot be disturbed under Article 136 of the Constitution.
- He also argued that there existed no other reasons so as to find the eye witnesses unreliable.
- The counsel submitted that the additional evidence that leads to the accused guilty is that the discovery of weapon of the offence at the instance of the accused under section 27 of the Indian Evidence Act.
JUDGEMENT ANALYSIS
- The court appreciated the value of ocular evidence in criminal cases in particular circumstances where in it is possible to believe that they were present at occurrence of the situation or if there exists something that is unreliable in their evidence.
- The court further held that mere discovery of weapon cannot be interpreted as enough to authorise the concealment or use of such a weapon by the accused.
- The court further held that the accused here disclosed that he shall be showing the weapon utilised but no where has been mentioned as to he has hidden or concealed the same.
- It is further held that panchnama has to be read over to the panch and it can only be used as a corroborate evidence and referred to the case Murli and another v. State of Rajasthan [(2009) 9 SCC 417 (2010) 1 SCC (Cri) 12]for the same.
- The court quoted the case Kirshnappa vs State of Karnataka [AIR (1983) SC 446] stating two conditions for application i.e., the information should lead to the discovery of the fact and the information therein that is relevant to such discovery shall be admissible.
- The court relied upon the case Dudh Nath Pandey v. State of U. P [AIR (1981) SC 911] and thus held that it cannot be presumed that just the fact that a person discovered a weapon does not lead to him being the person who concealed it or used it.
- The court further also referred to section 8 of the Indian Evidence Act and has stated that conduct alone cannot be considered as the basis for conviction.
CONCLUSION
- The essence of the section 27 of Indian Evidence Act speaks out that mere discovery would not lead to any authorisation rather the actual substantial evidence shall be considered for the same. Thus, the discovery of the weapon of the offence at instance by the accused in the police custody would not lead to concealment or use of the same by the accused himself.
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