BHOLAPRASAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant and seven others were placed on trial before an Additional Sessions Judge of Chandrapur on the allegations that on 2/1/1990 at or about 8. 00 a. m. they committed rioting on Chandrapur Tadoba Road and, in course thereof, the murder of Alakh Niranjan. On conclusion of the trial the learned Judge convicted the appellant under Section 302 Indian Penal Code (simpliciter) , while acquitting the other seven. As the appeal preferred by the appellant in the High court proved abortive he has filed the instant appeal after obtaining special leave.

(2.) To bring home the charges levelled against the appellant and, for that matter, the other accused persons, the prosecution rested its case upon the testimonies of, besides the doctor who held the post-mortem examination and other formal witnesses, Brijendra Pande (Public witness 3, brother of the deceased, who gave an ocular version of the incident and upon the dying declaration of Alakh Niranjan (Ex. 62 recorded by the Investigating Officer in the hospital in presence of a doctor. In describing the role played by the appellant, Public Witness 3 specifically stated that he gave two knife blows on the left side of the chest of Alakh Niranjan which resulted in his death. In the dying declaration, however, the version of the incident as given out by the deceased was that at the material time two persons were present, one of whom was a "madrasi" and the other from Bihar, and of them the "madrasi" took out a knife wrapped in paper and delivered a blow with it upon him (the deceased). In other words, while Public Witness 3 claimed that the appellant, who is a bihari, was the assailant, the deceased described the assailant as a "madrasi", without naming him.

(3.) When the above material discrepancy regarding the assailant was brought to the notice of the trial court, it observed as under: