SOHEL MEHABOOB SHAIKHversusSTATE OF MAHARASHTRA

                                     [2009] 6 S.C.R. 483

    /     ...                                                                   A
                                SOHEL MEHABOOB SHAIKH
                                              v.
                                 STATE OF MAHARASHTRA
                             (Criminal Appeal No. 1080 of 2007)
                                       APRIL 17, 2009
                                                                                B
                        [DR. ARIJIT PASAYAT AND ASOK KUMAR
                                     GANGULY, JJ.]

                     Penal Code, 1860 - s. 302134 - Unnatural death of wife
,,,...,         - Conviction of husband uls. 302 by courts below - However,     c
                acquittal u/s. 498A as accusation for dowry torture not
                established - On appeal, held: Order of High Court based on
                surmises and conjectures - Charge against husband was not
                established - Circumstances that deceased met with
                unnatural death and accused did not offer explanation           D
                regarding the incident cannot be considered to be relevant
                either separately or collectively - There was no evidence to
                show (hat accused was present in the room at the time of
                occurrence - Prosecution could not establish time of
                occurrence - Thus, conviction by courts below set aside.        E
                    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                No. 1080 of 2007.

                    From the Judgment & Order dated 03.04.2007 of the High
                Court of Judicature of Bombay, Bench at Aurangabad in           F
                Criminal Appeal No. 169/2005.

                    Gaurav Agrawal for the Appellants.

                    Sushi! Karanjakar and Sanjay Kharde for the Respondents.
                                                                                G
                    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
                                            483                                 H
     484    SUPREME COURT REPORTS                [2009] 6 S.C.R.

A 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 '1.P.C.').
B
       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 ana 323 of the 1.P.C. while the appellant herein
C and A-3 were convicted for the offence punishable under
  Section 302/34 of the l.P.C.

      3. By the impugned judgment the High Court set aside the
  conviction of A-3 but upheld the conviction of the present
D appellant under Section 302 of the l.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 ·
E 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 1.P.C.

       5. The judgment of the High court is assailed on the ground
  that the circumstances highlighted by the Trial Court and the
F 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,
G 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:

 H             "(i) Deceased Sofiya met with an unnatural death;
             SOHEL MEHABOOB SHAIKH v. STATE OF                      485
             MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
'"               (ii) Deceased Sofiya had died in the .oom which            A
            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           8
            ·sustained burns."

           8. We have gone through the evidence on record and we
     find that the High Court has arrived at some conclusions which,
     ir our opinion, are based on surmises and ·conjectures, without
     there being any evidence to support the conclusions. That              C
     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        D
     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           E
     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        F
     case.

     D.G.                                         Appeal disposed of.