APPU C K APPAYYA Vs. STATE OF GOA

JUDGEMENT

(1.) THE Appellant was tried for murder of Sandeep Pandurang Kerkar alias Baban under Section 304 I. P. C.

(2.) THE prosecution case, in brief, is that when Rajesh P. W. 3 and the deceased Baban alias Sandeep Kerkar after coming from the bar had gone to a distance of about 50 feet, some persons came from the opposite direction and the appellant hit a stone on Baban alias Sandeep Kerkar. P. W. 3 Rajesh tried to intervene, but two of the said persons came to assault him and he ran away being afraid. Subsequently, he met Krishna P. W. 4 and informed him of the assault by the appellant on Baban alias Sandeep Kekar and both of them went to Hotel Kavita and asked the appellant as to why he had assaulted Baban alias Sandeep Kerkar. On this, the appellant pulled out a razor and waved at them, as a result of which they were frightened and went away. The deceased was removed initially to Mandovi Clinic and, subsequently, to the Goa Medical College on 30th June 1996. In all, 12 injuries were found on his person and he expired on 1-7-1996. The First Information Report was lodged by P. W. 3 Rajesh Narala on 2-7-1996. The, only evidence, appearing on record against the appellant, is that of Rajesh P. W. 3 and Krishana P. W. 4. The stone in question which is alleged to have been used in the crime was not attached at the instance of the appellant and no blood stains were found on the said stone by the Chemical Analyser. Therefore, the recovery of the stone does not have much significance. The trial Judge accepted the evidence of P. W. 3 and P. W. 4 and convicted the appellant under Section 304 I. P. C. and sentenced him to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 1000/ and, in default, to undergo Simple Imprisonment for 6 months. This conviction and sentence is challenged by the appellant in this appeal. Learned Advocate Shri S. G. Bhobe was appointed under the Legal Aid Scheme to argue the appeal on behalf of the appellant who is in Jail undergoing the sentence imposed on him.

(3.) LEARNED Advocate Shri S. G. Bhobe made the following submissions: (1) Delay in the F. I. R. is fatal in the circumstances of the case and, at any rate, it throws considerable doubt on the evidence of the only eye witness P. W. 3 who had lodged the said F. I. R. ; (2) The evidence of P. W. 3 is unnatural, untrustworthy and cannot be relied upon; (3) The death, according to medical opinion, could be due to fall and (4) Attachment of the stone is not at the instance of the appellant nor any blood stains were found on it by the Chemical Analyser and, as such, it has no value. I shall deal with the arguments, one by one and, simultaneously, record the submissions made by the Public Prosecutor Shri Bharne on the said submission.