KESHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for the murder of deceased Jalandar Fulzele, under section 302 of I. P. C. The prosecution had examined 23 witnesses in support of the charge. After assessment of evidence, the trial Court convicted the appellant under section 302 of I. P. C.

(2.) IN order to appreciate the submissions advanced by learned Advocate for the appellant and the learned Additional Public Prosecutor, it is necessary to briefly enumerate the prosecution case. The prosecution case is that on 15-5-1990 at 3. 30 p. m. at Pulgaon near Bus Station, the appellant came from the backside of the deceased and inflicted one blow on the backside of the deceased and when the deceased turned around, the appellant inflicted second blow on the chest. The deceased was taken to the Hospital where he expired at 8. 30 p. m. on the same date. The medical evidence shows that there were two injuries on the person of the deceased namely : one on front chest region near the heart and other on the backside. The prosecution had examined large number of witnesses, many of whom did not support the prosecution case and declared hostile, but nothing could be elucidated from the said witnesses during the cross-examination by the Public Prosecutor.

(3.) P. W. 12 Dharampal, Municipal Councillor was examined as eye witness of the incident who has supported the prosecution. In addition to that evidence, the prosecution has relied upon the oral dying declaration said to have been made by deceased before the witness P. W. 11 Haridas as also to the wife of the deceased namely Sulochana P. W. 18. The prosecution had also relied upon the written statement Exhibit 76 said to have been recorded by the deceased himself, but the trial Court has not placed reliance on the same, as can be seen from para 26 of the impugned judgment. The trial Court had relied upon the statement of Dharampal P. W. 12, Haridas P. W. 11, and Sulochana P. W. 18. In addition, the trial Court also relied upon the statement of the Investigating Officer relating to the disclosure and recovery at the instance of the appellant, even though, the panchas in respect of the said discovery and recovery had turned hostile. The trial Court had also likewise accepted the cycle hired theory by the appellant which had also not been supported by the prosecution witnesses examined in that behalf. A brief reference to the prosecution witnesses who had turned hostile is necessary at this stage.