VIJAY NAROTTAM TAMORE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant herein is the original accused No. 3 in Sessions Case No. 88 of 1999. He is convicted for the offence punishable under Section 304(11) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years by the First ad hoc Addl. Sessions Judge, Palghar vide judgment and order dated 28.3.2007. Such of the facts which are necessary for the decision of this Appeal are as follows:--

(2.) PW-1 is brother of deceased Arvind. According to PW-1 - Prakash Tamore is the brother of deceased Arvind. According to PW-1, they had brought injured Arvind Tamore. He was referred to Dahanu Cottage Hospital. The police van accompanied them from Tarapur to Dahanu. He has not stated that the statement of Arvind was recorded by the police at Tarapur Primary Health Centre. In the cross-examination, PW-1 has admitted that he along with his brother Krishna and his wife went to the Police Station Tarapur along with injured who was in the vehicle and the police recorded the statement of the deceased Arvind in the police station. He has categorically admitted that the condition of Arvind was serious when he was taken to Government Dispensary at Tarapur. He has further stated that the condition of Arvind had deteriorated at Dahanu. They were in the Cottage Hospital Dahanu for about 1 to 1-1/2 hour. He has specifically stated that he does not know whether the statement of his brother Arvind was recorded in Dahanu Cottage Hospital. Hence, recording of statement of Arvind at Tarapur which is at Exhibit 40 is shrouded with mystery.

(3.) The statement of the present appellant was recorded under Section 313 of Cr.P.C. On perusal of the statement under Section 313 of Cr.P.C. of the appellant, it is clear that no question was put to the accused that the statement of the deceased Arvind was recorded at Exhibit 40 and that he had disclosed that the present appellant was his assailant. It is pertinent to note that the incriminating circumstance upon which the Court has relied and convicted has not been put to the accused in his statement under Sec. 313 of Cr.P.C.