VIJAY SHANKAR SHIVARKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant was tried for murder of Madhukar dudhpachare under section 302 of the Indian Penal Code. The prosecution had in all examined ten witnesses in support of the charge. The trial Court vide impugned judgment, which is subject-matter of challenge in this appeal, found the appellant guilty for the said charge and sentenced him to suffer imprisonment for life and fine of Rs. 500/- in default R. I. for two months. The appellant was in custody from 15-12-1992 till 22-04-1993 and benefits of the same in accordance with section 428 of Cri. P. C. was given to the appellant.

(2.) The prosecution case, in brief, is that on 15-12-1992 at about 6. 00 p. m. at Old Mangalwari, Nagpur, deceased Madhukar was sitting along with his friend and at that time the appellant came there and assaulted deceased madhukar with spear head on his chest. The appellant ran away from the spot after assaulting the deceased. The deceased was admitted to Mayo hospital where his statement was recorded by Head Constable Baburao (P. W. 8) who was present there on duty. Head Constable Baburao gave requisition to the doctor making enquiry as to whether the injured Madhukar was in a position to give statement. The doctor examined the injured Madhukar and made endorsement on the requisition that the patient was fit to give statement. Thereafter, Head Constable Baburao (P. W. 8) recorded the statement of the injured Madhukar and he proved the statement recorded by him. He had obtained thumb impression of the injured Madhukar on the same. Thereafter, he informed Lakadganj Police Station on phone and the investigation into the crime was taken up. The spear head was seized from the appellant and it was found to be stained with blood. After completing the investigation, the appellant was tried for murder of Madhukar Dudhpachare who had died on 18-12-1992. The defence is of total denial.

(3.) Learned Advocate for the appellant submitted before us that both the panchas (P. W. 1) and (P. W. 2) were declared hostile and nothing material could be elicited by the prosecution during cross-examination. He also pointed out that three other witnesses, namely P. W. 3, Chandrashekhar, P. W. 5, madhukar Gadikar and P. W. 7, Kamal were declared hostile by the prosecution. Relying upon the judgment of Division Bench of this Court in (Rambhau kashinath Waibhat and another v. State of Maharashtra) , reported in 1998 bom. C. R (Cri) (A. B. ) 625 : 1998 (1) Mh. L. J. 469, it was argued that the evidence of the hostile witnesses cannot be relied upon. In respect of hostile witness P. W. 3, Chandrashekhar, it was submitted that the statement of this witness was recorded by the police after five days of the incident and in view of the same and more so because the witness was declared hostile no reliance whatsoever can be placed on his testimony. In so far as evidence of P. W. 5, madhukar Gadikar is concerned, it is urged that this witness has admitted that he has not stated as per portion marked "a" and portion marked "b" before the police on account of which his testimony cannot be relied upon. In respect of hostile witness P. W. 7, Kamal, it was urged that the presence of this witness is not spoken by anyone. In respect of P. W. 4, Sitabai also, it is urged that according to her she had gone to Gokulpeth on the date of incident which is about 12 kms. away from the place of incident and she admits to have returned at 8. 00 p. m. whereas the incident took place at 6. 00 p. m. and as such it is crystal clear that she was not present at the time of the incident and has not seen the same.