“It is noteworthy to see that both the eyewitnesses have not been examined on behalf of prosecution despite sufficient opportunity. The prosecution has failed to bring on record as to in what manner the police inspector revealed that the alleged eyewitnesses were present at the time of occurrence and witness the incident,” additional sessions judge MS Kulkarni said. The judge further said that the prosecution could not bring on record any evidence to connect the accused in the commission of offence. “The spot panchanama, seizure of articles, medical evidence on record is not sufficient to connect the accused in the commission of offence. Therefore the documentary evidence on record will not help the prosecution… The prosecution has failed to establish that murder of the deceased Rafiq Shah has been caused by or in consequence of the act of the accused,” the judge said.
After the accused was untraceable, the case became dormant. In March this year, the judge referred to a letter received from the principal judge regarding expeditious disposal of dormant files. The judge then directed a notice to be issued to the police station concerned to execute a non bailable warrant against the accused. The accused was subsequently brought before the court and the trial commenced.
It was the prosecution’s case that on December 31, 1992, communal riots had taken place in the Kurla Area. It was submitted that cops received a wireless message around 8.15 am that a person was lying in an injured condition near the public toilet situated at Baburao More Chowk at Kurla (West). A cop visited the place along with the staff. However, in the meantime the injured was shifted to Sion hospital by his uncle Usman Miya. He succumbed to the injuries. Miya told the police that around 7 am that day, Rafiq parked his truck near Lion Garden Kurla as the tyre was punctured. Miya further said that when he was repairing the punctured tyre, Rafiq left to answer nature’s call at a public toilet near a temple. However, he did not return for a long time. Therefore Miya went in search of him and found him lying with multiple injuries.
The crime was registered against unknown persons. During investigations, it was revealed that two men witnessed the incident. Accordingly their statements were recorded. Both the witnesses described the assailants. Accordingly, the accused came to be arrested on March 10, 1993.
