VASANT RAMCHANDRA GAIKWAD Vs. STATE

JUDGEMENT

(1.) The Appellant Original Accused no. 2 has filed this appeal challenging the Judgment and Order passed by the Additional Sessions Judge, Greater Bombay dated 28 th November, 2006. By the said Judgment and Order the learned Additional Sessions Judge was pleased to convict the appellant for the offence punishable under Section 302 of the Indian Penalnsc. code and sentence him to suffer imprisonment for life and to pay fine of Rs. 200/- and in default of payment of fine to suffer further R.I. for one month. The Trial Court however acquitted Accused Appellant herein for the offence punishable under Section 452 of the Indian Penal Code and Section 25 r/w with Section 27 of the Arms Act and also under Section 135 of the Bombay Police Act.

(2.) Brief facts are as under : The prosecution case in brief is that on 20 th July, 1986, PW.1 Sarvesh Jaising Chavan and one other person Silvestor James Peter found one John Lazoras lying in an injured condition in a shop known as R.G. Patel Stores situated in Bamanwada area at Vile Parle. According to the prosecution they gave intimation about this fact to the Police and pursuant to the said information the Investigating Officer, Firoz Sorabji Ganjia PW.3 attached to the Sahar Air Port Police Station came to the spot alongwith the two informants and shifted the injured John to the Cooper Hospital for treatment and after taking permission of Dr. Tillu, he recorded the statement of John. The prosecution case is that the injured John informed PW.3, Firoz Ganjia that the Appellant, Vasant Ramchandra Gaikwad and the other accused Raju Mama, (expired during the pendancy of the trial) assaulted him with sword and sickle. The statement of the John was recorded and it was read over to him in Hindi, however, his thumb impression or signature could not be obtained and therefore the endorsement of Dr. Tillu was taken on the statement of the John who later on succumbed to the injuries and died at about 5.00 p.m. on 20 th July, 1986. His statement was treated as an FIR and offence punishable under Sections 452, 302 of Indian Penalnsc. Code was registered against the appellant and deceased Raju Mama. During the course of the investigation, PW-3 seized the blood stained clothes and wrist watch of the deceased John in the panchanama at Exhibit -15. Blood stains were found on the gunny bags containing food grains and a plastic can kept in the shop. He also found a railway pass, identity card of accused, Vasant, his batch number issued by the R.T.O, one pair of slippers and one single slipper and a panchanama was prepared at Exhibit-16 of the said discovery. The accused were arrested on 21 st July, 1986. After they surrendered to the police, a Arrest panchanama was prepared. The postmortem was performed by Dr. Prabhakar Ganesh Bhave, who gave opinion that the cause of death was due to multiple injuries sustained by the deceased.

(3.) Learned counsel appearing on behalf of the appellant submitted that the Trial Court had erred in convicting the appellant only on the basis of uncorroborated testimony of PW.3 who was the Investigating Officer. He submitted that no independent witnesses were examined by the prosecution in support of the cases of dying declaration being recorded by PW.3 in the presence of independent witnesses whose statements were recorded. It was submitted that the prosecution failed to prove the endorsement of Dr. Tillu who had given an endorsement that John who was in an injured condition was fit and conscious and in a proper mental frame of mind to give a statement to PW.3. It was further submitted that therefore no reliance could have been placed on the alleged dying declaration. It was further submitted that no attempt was made to call the Special Executive Magistrate to record the dying declaration of the deceased. He submitted that independent witnesses such as panchas who had prepared the panchanama also were not examined by the prosecution. He therefore, submitted that the trial court has erred in relying on the sole testimony of the Investigating Officer for the purpose of convicting the appellant. nsc.