MD RAFIQ MD TAJODDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 1. Criminal Appeal no. 742 of 2003 has been filed by original accused no. 3 Rafiq while Criminal Appeal no. 785 of 2003 has been filed by original accused nos. 1 and 2. Since both these appeals challenge the conviction of the appellants for offence punishable under section 302 read with section 34 of the Indian Penal Code and sentence of imprisonment for life and fine of rs. 1,000/- each, in default further imprisonment for three months, passed by the 2nd Ad hoc Additional Sessions Judge, Nanded, by judgment dated 17-10-2003, in Sessions case No. 41 of 1999, both these appeals are being decided by this common judgment.

(2.) SUCH of the facts as are relevant for the decision of these appeals can be stated thus :-P. W. 9 A. S. I. Shripat Jankar was attached to the Bhagyanagar police station. On 23-8-1998 while he was at Tarodanaka chowki he received a phone message from the P. S. O. , bhagyanagar police station for recording the statement of injured one Datta who was admi tied in the Govt. Medical College and Hospital at nanded. He, therefore, went to the hospital, contracted the Medical Officer who pointed out injured Datta to him. He inquired from the medical Officer about the fitness of injured to give his statement and the Medical Officer informed him that injured was in a condition to give a statement. P. W. 9 A. S. I. Jankar, therefore, recorded the statementof injured Datta as per Exh. 50. P. W. 5 Mazar Hussain who was on duty at Bhagyanagar police station as ap. S. O. was handed over the complaint of injured Datta and accordingly registered Crime No. 167 of 1998 initially under section 326 read with section 34 of the Indian Penal Code and handed over the investigation to P. W. 14 Ashok Thorat. P. W. 14 p. I. Ashok Thorat took over the investigation of the crime and went to the scene of the offence and drew the scene of the offence panchanama at Exh. 68 in the presence of P. W. 2 Dattatraya and P. W. 1 Rajeshwar, who did not support the prosecution. On the same day he collected sample of blood stained soil and control soil vide panchanama at Exh. 69 in the presence of P. W. 1 rajeshwar and P. W. 2 Dattatraya. Original accused no. 2 Raosaheb is alleged to have produced Jambiya and Katti (sickle) which came to be attached vide panchanama at Exh. 70 in the presence of P. W. 16 Bhimrao. Thereafter he issued a requisition to the Special Judicial magistrate for recording the dying declaration of injured Datta. P. W. 8 Namdeo Sonkamble who was working as Special Judicial Magistrate received a requisition from police station, bhagyanagar for recording the dying declaration of injured Datta. Accordingly on 23-8-1998 he went to the hospital at Nanded and recorded the dying declaration of injured Datta at Exh. 48. P. W. 11 Dr. Shantikumar Baradkar had examined injured when P. W. 8 Namdeo had recorded the dying declaration at Exh. 48. On his admission in the hospital at Nanded, inj ured Datta had been examined by P. W. 10 Dr. Mohd. Taher who had noticed the following external injuries :-

(3.) ON committal of the case to Court of Sessions, Trial Judge, vide Exh. 19, framed a charge against all the accused for offence punishable under sections 302 read with Secs. 34, 326 read with sec. 34 of the Indian Penal Code and under section 135 of the Bombay Police Act. The Trial Judge on consideration of the evidence convicted and sentenced the appellants who are original accused nos. 1 to 3 for offence punishable under section 302 read with section 34 of the Indian Penal Code, while acquitting original accused no. 4. The entire case of the prosecution rests on the four dying declarations which are at Exh. 50, Exh. 51, Exh. 48 and exh. 45. During the trial, P. W. 12 Dr. Pundlik jamdade produced the case papers at Exh. 64 in respectof treatmentgiven to Datta in the hospital at Nanded.