HYDERKHAN LALKHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Under Confirmation Case No. 2 of 1975 the Additional Sessions Judge, Greater Bombay, has sought confirmation of the death sentence awarded by him to the accused while holding him guilty under section 302 of the Indian Penal Code. Criminal Appeal No. 1051 of 1975 is by the accused against the order of his conviction and sentence. It will be proper to deal with the appeal of the accused against his conviction first before dealing with the confirmation case.

(2.) The accused in this case, on Hyderkhan Lalkhan was charged under section 302 of the Indian Penal Code for having committed, during the night of 3rd and 4th August, 1974, the murder of one Chutkhan Shankhan. It was the prosecution case that on the night of 3rd and 4th August, 1974, the deceased Chutkhan was going to his residence at Bandra near old Railway Quarters at Khar. To reach that place he had to go by Swami Vivekanand Road and then turn near an Irani Hotel to the East in order to go to Kher Nagar, Bandra (East). On the way, he had halted near one Punjab Alamgir Hotel for the purchase of cigarettes. At that time the accused had come there from behind and stabbed him on his arm. Then as he turned, the accused stabbed him on his chest and abdomen. Thereafter the accused had gone by the opposite lane while the said Chutkhan, after walking a few paces, had stopped a taxi, got into it and gone to K.E.M. Hospital. At the K.E.M. Hospital he was taken by a Police Constable stationed there to the out patient department, casualty ward. Dr. (Miss) Munshi who examined him had recorded the necessary information in the register as well as the condition of the patient and he was immediately admitted to the emergency ward No. 20 at the hospital. The said Police Constable after making a record in the register of the information received, sent a telephone to the Bandra Police Station. Before that at Bandra Police Station some information as to the occurrence near Punjab Hotel was received and, therefore, S.I. Kamat had already proceeded to the scene. As he did not find anything on the spot, he had telephoned to the Bandra Police Station and learnt about the message sent by the Constable from the hospital. He, accordingly, came to the K.E.M. Hospital and saw the injured person at ward No. 20. After making inquiries with the injured person as well as from the doctor as to whether he was in a position to make a statement the P.S.I. had, with the permission of the doctor, recorded the statement of Chutkhan, at about 2 a.m. on 4th August, 1974. In the meantime, the deceased was operated upon. On 4th August, 1974, at about 1.30 p.m., with the permission of Dr. Mehendale, the Assistant Inspector Desai also had recorded the statement of the deceased. Again on the 6th August, 1974, at 12-10 am., the Hon Metropolitan Magistrate one Patil, had also, with the previous permission of the doctor and after ascertaining from the doctor that the injured was in a position to make a statement, recorded his statement in question and answer form and had obtained an endorsement of Dr. Pinto (P.W. 8) thereon. However, inspite of the operation, the injured succumbed to the injuries on the 7th August, 1974. The accused was arrested on 4th August, 1974 itself while he was found sleeping on a Bench at Dahisar Station.

(3.) Post-mortem examination of the deceased revealed the following external as well as internal injuries. The external injuries found were :