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Bombay High Court
The State Of Maharashtra vs Shri Razzak Akbar Khan Rampuri … on 15 September, 2000
Equivalent citations: 2001 BomCR Cri, (2001) 1 BOMLR 263
Author: R J Kochar
Bench: P Patankar, R Kochar


ORDER

R. J. Kochar, J.

1. Heard both the learned Counsel for their respective parties.

2. After the turn of the 20th Century, the turn of this Appeal has reached for its hearing and final disposal. The State was in queue having knocked our doors in the year 1985. The incident which gave rise to the present proceedings itself has attained the age of majority from the date of its occurrence i.e. 26th January, 1982. Even then better late than never. The learned Counsel for the Accused have made even this point for not sentencing them and to spare them.

3. A communal riot-like situation took place in the heart of the City of Pune on the evening of 26.1.1982 where one group attacked with arms the other which was unarmed in the street. A procession under the banner of Patit Pawan Sanghatana passed through a locality of Muslims giving some objectionable slogans against those who wanted Pakistan. It is alleged that the Accused amongst others attacked those in the procession with deadly weapons such as swords, knives, iron bars, sticks, stones, botttles etc. resulting in one death and eight injured. After police investigation a charge was framed under Sections 120B, 147, 148 and 302, 324, 323, 337 read with Section 149 of the Indian Penal Code against the 27 Accused to which they pleaded not guilty. In their statements under Section 313 of the Criminal Procedure Code it is their case that they were falsely implicated in the crime and that it were the processionists who had attacked the Muslim residents in the locality. After a full fledged trial the Sessions Court acquitted all the accused by its Judgment and order dated 12.10.1984 which is impugned before us by the State against 12 accused out of 27 which include Accused Nos. 3, 21 and 23.

4. According to us there is more than sufficient and trust worthy evidence to support the conviction at least against the accused Nos. 3, 21 and 23. The injured persons and the eye witnesses who have unmistakenly named them as their assailants cannot be disbelieved merely because there

are some minor discrepancies in their oral evidence. They cannot be discredited or discarded merely on the ground that they had deposed on oath some facts which were not found in the police statements. It is certainly not that they have given an entirely new story or totally improved versions. Addition of some facts does not always necessarily indicate falsehood. It is also possible that their memory might have failed when the first statement was recorded and they recollected or remembered some facts afterwards. Further, minor omissions cannot discredit a witness. According to us every such added or remembered fact cannot always be condemned to be false or we cannot rush to a conclusion that the evidence of the said witness is unbelievable. We also cannot forget that in a riot-like situation there is always possibility of mixing up and jumbling of facts and while appraising evidence we must give due discount to such possibility before totally throwing out the evidence as worthless. We cannot spare or leave the guilty easily or lightly by giving undue and disproportionate weight to minor and negligible discrepancies which are sheer outcome of the weakness of human memory though we are equally conscious of the law that no innocent person can ever be punished. We cannot let the impression grow and strengthen that the guilty persons can get away easily and lightly who thereafter get further emboldened to repeat the riots, which must be prevented at any cost. Passage of time cannot be a valid consideration to condone the offenders or take any lenient view when guilt is brought home. According to us there is sufficient evidence against the accused Nos. 3, 21 and 23 to find them guilty. We will be failing in our duty towards the society if they are let off only on the point of lapse of 18 years. Law must always reach its logical end.

5. To substantiate the charges, the prosecution examined in all 45 witnesses and also produced documents. The defence of the accused was of total denial of the guilt and that they had no connection with the incident and that they were falsely implicated in the case at the instance of the members of the Patit Pawan Sanghatana. The learned Judge framed as many as nine points for determination and except the first he decided all other points against the prosecution. The Point No. 1 however, was answered affirmatively that the prosecution had proved that Shrikant Lingayat had died as a result of homicidal death. On the remaining points it was held by the learned Judge that the accused persons had not committed any offence/offences for which they were charged. The learned Judge has discussed the documentary and oral evidence adduced before him by the prosecution. As far as the point of motive was concerned, according to the learned Judge, there was no evidence of motive adduced by the prosecution though however it was an admitted fact that prior to the incident there was no enmity amongst the eye witnesses, the deceased Shrikant Lingayat and the injured witnesses on the one side and the accused persons on the other. As we have already stated hereinabove that it was a case of attack by one group on the other belonging to different religion. It was a kind of communal riot indicating no previous personal or individual animosity against each other. Unfortunately such events often occur for the obvious historical reasons. We have carefully examined the findings recorded by the learned Judge on the first point and we find no infirmity in the same. He has discussed the whole evidence and has taken into account all the facts on record including the two crucial factors that the deceased Shrikant Lingayat

was an indoor patient in the Sasoon Hospital from 26.1.1982 till his death up to 15.3.1982 and he had given a dying declaration (Exh. 61) recorded by P. W. 9 Vasant N. Kasbe, then Special Executive Magistrate on 27.1.1982 at 5.30 p. m. and also a Police Statement of the deceased marked by letter “Z” recorded by P. W. 45 P. I. Hundekari on 30.1.1982 in Sasoon Hospital. While discussing this issue the learned Judge has observed that the deceased after attack had fallen down and was hurt during the procession and he sustained the injuries found on his body. The learned Judge has also relied on the post-mortem notes (Exh. 109) and the other medical evidence and concluded in no uncertain terms that the aforesaid injuries coupled with the internal damage were cause of the death of Shrikant Lingayat. He accepted the experts opinion about the cause of death and firmly held that the death was homicidal. This finding is not challenged before us.

6. The deceased Shrikant Lingayat had given his dying declaration on 27.1.1982 at 5.30 p. m. and the same was recorded by Special Executive Magistrate (P. W. 9). In this dying declaration the deceased had narrated how he was attacked by one young boy with mustache, who gave a knife blow on his right ear and also right side rib and he fell down and thereafter also he was continued to be assaulted with kicks and stones. He gave the name of his assailant as Salim. He had also given two other names who were with Salim at that time, Aslam and Javed. This dying declaration has been duly proved by examining the writer Shri Vasant Kasbe, P. W. 9. The learned Judge has refused to rely on this dying declaration mainly for the reason that the deceased had not given the name of the father of Salim. According to us, there is sufficient corroboration of the dying declaration in the evidence of Shri Vasant Kasbe, P. W. 9. and Shri Ballu Bakshani, P. W. 21. We are not prepared to discard the dying declaration merely because the name of the father of Salim or his address is not given by the deceased in his dying declaration. It is pertinent to note that the learned Judge has come to a clear findings on the basis of surrounding evidence on record that the deceased was not tutored by his friends and relatives before making the dying declaration. If, the dying declaration had been as a result of so called tutoring it would have lost its evidential value. In our case it is clearly found that there was no tutoring of the deceased and if that is so the dying declaration must be given its due evidential value and it must be accepted as the legal and valid document. In the dying declaration the deceased has given the name of his assailant as Salim. Had he been asked the name of his father or address of his residence he would have perhaps given such details. Since no such question was asked to him it is possible that he presumed that he had established the identity of Salim clearly and that there was no doubt in his mind about the identity of Salim, which according to him, was correct. In addition to the said dying declaration by P. W. 9 the writer of the said document another witness P. W. 21 Ballu Bakshani was present and he has proved the fact of giving of the dying declaration. On reading the evidence of P. W. 21 we cannot discard his whole evidence. According to us, this evidence fully corroborates the dying declaration. We further fail to understand the logic of the learned Judge that the deceased did not know his assailant as he did not on his own give the name of Salim’s father. In addition to the aforesaid two witnesses we also cannot ignore and discard the second dying declaration recorded on 30.1.1982 by P. W. 45 P. I. Hundekari and marked as letter “Z”. We fail to understand how the said

P. W. 45 was interested in getting the accused punished as the fruit of the investigation. According to us, there was no illegality in the act of Shri Hundekari who recorded the second dying declaration on 30.1.1982. It is not disputed that there was only one Salim amongst the 27 accused. More often than not young boys are known and called by their first names and they are popular in the Galli/Mohalla by that name only. They are not called with father’s name. The deceased had no animosity or enmity with the said Salim to particularly implicate him falsely. It is further pertinent to note that he had given the name of Salim, who had attacked him with knife and he did not give the names of others who were with him as his attackers. The deceased was specific about Salim. He had no axe to grind against him. In addition to the aforesaid evidence there is a third witness viz. Anil Gate. P. W. 11 who has also specifically given the name of Salim who was seen by him attacking the deceased Shri Shrikant Lingayat with a sword. He had also identified the accused No. 21 being Salim who had assaulted the deceased Shrikant Lingayat. The learned Judge has totally discarded the oral evidence of P. W. 11 Anil Gate, who had named and recognised Salim, Accused No. 21. His testimony is being discarded by the learned Judge as improbable for him to have remembered the name of Salim with a sword in his hand to have attacked the deceased as there was a mob surrounding them and that he had run away from the scene getting frightened. None the less he had specifically given the name of Salim, Accused No. 21, who gave blow to the deceased. According to us, the evidence of Shri Anil Gate and the other evidence on record, leaves no manner of doubt in our mind that Salim, accused No. 21, had assaulted the deceased Shrikant Lingayat with a sharp weapon like a sword or knife (Sura) finally resulting in his death.

7. We must mention here the mind set of the learned Judge before appreciating the oral and documentary evidence in the matter. Before analysing the facts and evidence on record he appears first to wear spectacles of case law and the ratio laid down by the Supreme Court in the facts and circumstances of the cases before them. It appears that before coming to his conclusion purely on the basis of the evidence and the facts before him, the learned Judge has tried to fit the case in the ratios of the judgments. According to us, he ought to have first purely and simply analysed and appreciated the evidence before applying the case law. From the evidence on record, we are of the opinion that Salim, accused No. 21, is proved to have been guilty of attacking the deceased Shrikant Lingayat and causing him serious injuries due to which he finally succumbed on 15.3.1982. According to us, the prosecution has succeeded in proving the guilt against accused No. 21, Salim. However, it is not possible to accept that he was guilty under section 302 of the I. P. C. Dr. K. J. Bannerjee, P. W. 34 has deposed that in his opinion the cause of death was septicemia as a result of peritoniti as associated with haemothorax following penetrating stab injuries. He has prepared the Notes which are at Exhibit 109. He has also deposed that septicemia has relation with the injuries to the small bowel and also signoid colon because the bowels of a person contain thousands of harmful bacteria and when any injury occurs, the bowels or colon, at every moment it is prone to infection and thereby septic condition. He has deposed that Injuries No. 3 and 4 mentioned in the Medical Certificate at Exh. 101 was sufficient in the ordinary course of nature to cause death. However, in the cross-examination he has stated that in the

present case it was not possible to say what was the source of the bacterial germs entering the body of the deceased. The injuries suffered by the deceased were on vital parts such as lumber region and near abdomen. Therefore, it can be said that accused No. 21 Salim was guilty under section 304 Part II as it can be said that he knew that the attack with sword was likely to cause death.

8. Now we proceed to consider the case of the accused No. 3 Sunny who is also alleged to have attacked and assaulted Ramesh Keshatwar. It was the case of the prosecution that the Accused No. 3 and the Accused No. 23, Sunny Pandye and Illahi had assaulted P. W. 10 Ramesh Keshatwar, who deposed in his evidence that at the time of the incident he had recognised Sunny Pandye, Munna and Illahi. He had recognised the Accused Nos. 3 and 23 at the time of the trial and had stated that Accused No. 23 had assaulted him with a sword twice in his back and Accused No. 3 Sunny Pandye caught hold of him and made his moped to fall down and started assaulting him. He had admittedly identified both the accused and had recognised them at the time of trial. His evidence is supported by another P. W. 8 Kewalchand Oswal who swore of having seen the assaulting of P. W. 10 Ramesh Keshatwar with sword on his back side. The learned Judge however has discarded the corroborative evidence of P. W. 8 merely on the ground that he could not have remembered his impression and the faces of the accused Nos. 3 and 23. It appears from the analysis given by the learned Judge in paragraph 86 of the Judgment that the evidence of P. W. 10 Ramesh Keshatwar was not believed merely on the basis that he had not stated in his statement before the Sub-Divisional Magistrate, Kasbe, P. W. 9 that the accused No. 23 had assaulted him with sword and that the accused No. 3 caught hold of him and made his moped to fall down and accused No. 3 started assaulting him. The learned Judge appears to have lost sight of time lag between the incident and the recording of their oral evidence before the Court. The material part of any evidence cannot be disbelieved or discarded by finding small and negligible discrepancies, which might creep in due to lapse of time as also on account of failure of memory at certain point of time. Many a times we do not consider a particular fact to be of crucial importance while the same might acquire crucial importance according to others at the same time. According to us, the oral evidence of the victim Ramesh Keshatwar cannot be discarded in this manner. In fact he was the injured victim of the attack and therefore there is no manner of doubt in our mind that he would not forget his assailants whom he has named. While considering the attacks it is ridiculous to analyse his evidence mathematically that how many blows he received and which was a strong blow and which was a light blow and who had given the first stroke and who had given the second one. When there are more than one assailants and they attack the victim by encircling all are equally responsible. The testimony of the victim cannot be discarded in the manner in which the learned Judge has done. Some kind of contradiction was tried to be found between the statements made before the Sub-Divisional Magistrate and the statement recorded before the Police as to who caught hold of him and what was caught by whom and who had given blows. There is no mathematical accuracy to remember the count of blows received by the victim who finally only remembers that he was assaulted by the assailants. In our case Ramesh Keshatwar names the two assailants

and the assault. He has given the details of the incident as to who had caught hold of him and who had assaulted and what happened thereafter. The learned Judge has also discredited the testimony of P. W. 10 on his position in the procession as to whether he was on the front or at the back of the procession. In the procession people move out from front to back to properly manage and organise the procession or for joining their friends in the procession or for a just change. It is possible that some times the witness might have seen him in the front and the second witness might see him in the middle or back or at the tail of the procession in accordance with the movements in the procession. Such processions are not military marches where no one leaves his own position. We find nothing in the corroborating evidence of P. W. 27 to discard the evidence of P. W. 10 as well as P. W. 27 that the accused Nos. 3 and 23 had assaulted P. W. 10 Ramesh Keshatwar. We do not think that his evidence is shaken in any manner. According to us it is proved with reasonable precision that accused Nos. 3 and 23 had assaulted Ramesh Keshatwar with iron bar and sword. We do not agree with the conclusions of the learned Judge that the evidence against them is reduced to nullity. We do not think that the evidence of P. W. 10 and P. W. 27 regarding complicity of both the accused is nullified. Moreover, at the instance of Accused No. 3 iron bar came to be recovered. Panchanama is at page 74. It is proved by Panch I. W. 17 Koshti. The Article was No. 31. It was sent for C. A. Report. It shows that it was stained with blood group “B”. Keshatwar’s clothes was sent and the blood group found was “B”. On search of house of Accused No. 27 the sword was found. Panchanama Exh. 130. Proved by I. W. 40. B. D. Narvekar sent for C. A. found blood “B” Group. The learned Advocate for the accused tried to contend that the entire episode has been falsely projected as there were discrepancies in the evidence regarding the slogans given by the group of the deceased and injured. The discrepancies are quite minor and immaterial and they cannot lead to the conclusion that the episode was false and concocted and that the accused were falsely implicated in it. According to us on the basis of this whole evidence guilt is established against accused Nos. 3 and 23.

9. The Trial Court has considered the evidence against these accused vide paras 85, 86 and 87 of the Judgment at pages 695 and 696 as well as on page 697 of P. W 10 Ramesh Keshtwar, P. W. 27 -Yogesh Shah and Panch Witness P. W. 17 – Sangappa Koshti and Bipin Nevarekar P. W. 40. Their evidence is discarded on flimsy grounds and contrary to the principles relating to appreciation of evidence, in as much as the evidence of P. W. 26 Harish Patel has not at all be considered.

10. The Trial Court has failed to see that P. W. 10 Ramesh Keshtwar (page 463 para 3) identified Accused Nos. 3 – Sunny Pandye and fully implicates the said Accused No. 3 as P. W. 10 Ramesh Keshtwar was himself an injured eye witness. P. W. 27 – Yogesh Shah (page 539 – para 2) identifies Accused No. 3 and is an eye witness for assault on P. W. 10 with iron bar.

11. Evidence of Harish Patel (P. W. 26 – page 534 – Paras 3-4-5) is not properly considered by the Trial Court. The said witness Harish Patel P. W. 26 also identifies assault by Accused No. 3 Sunny Pandye on P. W. 10 Ramesh Keshtwar (also an eye witness) with iron bar.

12. P. W. 17 Sangappa Koshti, Panch Witness page 492 para 2 proves Panchnama Ex. 74 page 497 for discovery and recovery of Art. 31 iron bar

at the instance of Accused Nos. 3 Sunny Pandye. C. A. Report Ex. 145 page 624 proves presence of Blood Group B which is also the Blood Group of P. W. 10 Ramesh Keshtwar who was assaulted by Accused No. 3 Sunny Pandye. Blood Group ‘B’ of P. W. 10 Ramesh Keshtwar is also proved by Certificate Ex. 147 at page 627.

13. The evidence of P. W. 10, P. W. 26 and P. W. 27 equally implicates Accused No. 23 as well and in addition P. W. 40 page 593 – para 1, Bipin Newarekar – Panch Witness proves discovery and recovery of Art. 30 sword from the house of Accused No. 23 in the presence of his mother Khairunissa Kadarkhan under a search warrant. Sword Art. 30 was also stained with human blood Group ‘B’ which is proved to be of P. W. 10 Ramesh Keshtwar (Ex. 145 – page 624).

14. From the evidence referred against accused Nos.3 and 23 (Respondent Nos. 3 and 11) it has to be held that they were liable to be convicted in any case for causing hurt to P. W. 10 Ramesh Keshtwar under Section 324 read with Section 34 of the I. P. C. as the evidence against them is clinching,

15. The allegation against the Accused No. 21 is also that he gave blow with sword on P. W. 11 Anil Gate. We have already discussed the evidence against him in respect of his assault on the deceased Shrikant Lingayat. He had also given blow with sword on the P. W. 11 Anil Gate, who sustained three clean incised wounds as disclosed from the medical evidence. Anil Gate has recognised Salim at the time of trial, we therefore do not think it proper to disbelieve him merely because he tried to give his full name i.e. Shaikh Salim Shaikh Qureshi. We fail to understand the logic of the learned Judge while appreciating the evidence. It is surprising to us that when the deceased Shrikant Lingayat had not given the full name of Salim, his evidence was tried to be undermined by the learned Judge while P. W. 11 Anil Gate gives the full name of Salim then his testimony is being undermined by the learned Judge as full name of the accused was given for the first time. From the evidence it is clear to us that the P. W. 11 Anil Gate had clearly established the identity of Salim as his assailant, who was armed with sword. According to us apart from any other subsidiary or secondary evidence P. W. 11 has established that he was attacked by Accused No. 21 with sword. The medical evidence has proved the injuries sustained by the P. W. 11 Anil Gate. He has identified his assailant by name. We may further analyse the whole evidence against this accused No. 21. The Trial Court has considered the evidence against this accused No. 21 in para 75/76 of the Judgment on page 688 (Vol. III) and found the following infirmities :-

(a) Only single name is given and not father’s name ;

(b) Witnesses have not stated that these accused were known previously:

(c) Witnesses have not stated that these accused were known to the deceased previously ;

(d) Trial Court relying on the decision of the Supreme Court in the case of Gopal Singh v. State of Madhya Pradesh, has held that dying declaration lacked corroboration.

The Trial Court has further found vide para 78 page 690 (Vol. III) of the Judgment and has discarded the vidence of P. W. 21 – Ballu Bakshani and evidence of P. W. 11 Anil Gate in para 80 – page 692 (Vol. III) as well as

evidence of P. W. 42 Rajendra Pardeshi in para 81 page 692 (Vol. III) and that P. W. 8 Kevalchand Oswal in para 82 page 694. The Trial Court has held that (para 84 page 695) prosecution has not led reliable, cogent and unimpeachable evidence to connect this accused No. 21 Shaikh Salim Shaikh.

16. According to us the evidence of these witnesses is not such which could be summarily discarded for the reasons stated by the Trial Court. Conduct of these eye witnesses can be said to be natural and their presence, being injured eye witnesses and whose presence on the spot is established beyond reasonable doubt and whose evidence is corroborated by medical evidence. It, therefore, cannot be said to be lacking in corroboration or is unreliable, or impeachable. It appears that the Trial Court has not considered the following evidence vis-a-vis Accused No. 21.

(i) Vide Ex. 61 (page 462), P. W. 9 Vasant Kasbekar who has proved Dying Declaration of Shrikant Lingayat (deceased) in his evidence at page 459 it is proved that Salim i.e. accused No. 21 had assaulted with knife and there was no reason to discard the said Dying Declaration evidence for want of corroboration ;

(ii) P. W. 21 – page 518, vide paras 5, 6 and 7 Ballu Bakshani clearly implicates Accused No. 21 Salim and being injured eye witness his presence could not be doubted ;

(iii) P. W. 11 page 467 – Anil Gate also implicates Accused No. 21 Salim and Anil Gate is also an injured eye witness whose presence also could not be doubted. There is no reason to disbelieves his evidence that he was attacked by Accused No. 21 Salim with sword.

(iv) P. W. 42 Pardeshi (page 600) vide paras 1 and 2 of his evidence proves vide Panchanama Ex. 134 (page 603) the discovery and recovery of Art. 36, Art. 37 and Art. 38 vis., iron bar, knife and sword respectively. Art. 38 had human blood in C. A. Report Ex. 145 (page 624) and Art. 87 also had human blood of Group A of deceased and the said evidence also implicates Accused No. 21 Salim;

(v) P. W. 8 – Kevalchand Oswal (page 448 paras 1, 2 and 3) who has lodged F. I. R. Ex. 58 (457) is corroborative to prove the assault and the incident.

Further the post-mortem report Ex. 109 (page 571-573) shows as many as 11 stab injuries and the cause of death is stated to be “Septicemia as a result of pelvic peritonitis associated with hemothorax following penetrating stab injuries”. The Trial Court has considered the cause of death in para 25 page 652 (Vol. III) as a homicidal death. Admittedly all 11 stab injuries were not inflicted by Accused No. 21 and the injury or injuries caused by Accused No. 21 were not alone individually sufficient to cause death. In a similar case in the case of Bawa Singh v. State of Punjab, the conviction under Section 300 Clause 3 was altered to Section 304 Part II and there is sufficient and unimpeachable evidence as stated above to hold Accused No. 21/Respondent No. 9 liable for the offence of causing death not amounting to murder under Section 304 Part II of the I. P. C. We therefore do not find any infirmity in the case of the prosecution as far as this accused is concerned.

17. We do not desire to discredit the evidence adduced by the prosecution in respect of the accused Nos 3, 21 and 23 merely on the basis of want of mathematical accuracy and for minor discrepancies which might have crept in for want of a very photographic memory of the witnesses. We therefore hold the accused Nos. 3, 21 and 23 guilty of the offences levelled against them. As far as other nine accused are concerned we agree with the learned Judge that there was no evidence to establish their involvement in any of the offences. We therefore allow the appeal in respect of accused Nos. 3, 21 and 23 only and convict and sentence them on the basis of the role played by them.

18. This is a fit case, even on the ratio of Supreme Court’s decision in the case of Ajit Savant Majagvai v. State of Karnataka, which lays down the principles which would govern and regulate High Court’s power to set aside acquittal, to convict Accused Nos. 3 and 23 under Section 324 of the I. P. C. for causing hurt to P. W. 10 Ramesh Keshatwar and Accused No. 21 under Section 304 of the I. P. C. for causing death of Shrikant Lingayat, even assuming that all other accused have to be acquitted.

19. Though the charges framed (Ex. 8) are under Sections 120-B, 147, 148 and 302, 307, 324, 323 and 337 read with Section 149 of the I. P. C. this Court has power to convict the accused for lesser offence read with the doctrine of vicarious liability under Section 34 of the I. P. C. as held by the Supreme Court in the case of Ram Tahal v. State of U. P., and the ratio of Supreme Court’s decision in the case of Bolineedi Venkataramaiah v. State of A. P.,.

20. Following Judgments, cited by the Defence are not applicable to this case as the facts of this case are completely different from the facts in those matters.

1. Shankar Raju Banglorkar v. State of Goa, of the judgment says that “Accused made disclosure before the panchas at that time he was handcuffed and therefore the disclosure was made under duress, pressure or threats given by the police being therefore not admissible in terms of Article 20, Part III of the Constitution.”

This Authority is not applicable and helpful to the defence as in the present case, no recovery under Section 27 was made by handcuffing the Accused at the time of disclosure.

2. Gentela Vijayardhan Rao & Anr. v. State of Andhra Pradesh,.

Head Note (A) of the Judgment says that –

“Magistrate recording the statement of victims under expectation of death Maker of statement not dying – Statement cannot be used as substantive evidence.”

Even this Authority is not applicable and helpful to the defence as in the present case, the statements made to S. D. M. by some of the prosecution witnesses are used as a corroborative piece of evidence and not as a substantive evidence.

3. Deoraj Deju Suvarna v. State of Maharashtra,.

This Authority is also not applicable as the case discussed in this matter was of Detention and issue involved was Article 22(5) of the Constitution of India.

21. In view of the aforesaid discussion with regard to the offence which led to the death of the deceased, Shrikant Lingayat, in our opinion, having decided to accept the dying declaration given by the deceased and other corroborative evidence and more so on the medical opinion we have no hesitation in holding that the offence under Section 304 Part II of the I. P. C. is established against the respondent No. 9 (Original Accused No. 21 Salim) as it can be said that he had knowledge that the attack was likely to cause death. We have also no hesitation in holding that the offence under Section 324 read with section 34 of the I. P. C. is established against, respondent No. 3 (Original Accused No. 3) and respondent No. 11 (Original Accused No. 23) respectively.

22. The net result, therefore, is that the Appeal No. 41 of 1985 filed by the State is partly allowed so far as respondent No. 9 (Original Accused No. 21), respondent No. 3 (Original Accused No. 3), respondent No. 11 (Original Accused No. 23) are concerned. Appeal against the rest of the accused is dismissed. Respondent No. 9 (Original Accused No. 21) is convicted under Section 304 Part II and sentenced to suffer 7 years R. I. and to pay a fine of Rs. 3000/-, in default of payment of fine, to suffer R. I. for one year. He is also convicted under Section 324 for causing serious injuries to Anil Gate and sentenced to suffer R. I. for one year and to pay a fine of Rs. 1000, in default of payment of fine, he would undergo further sentence of six months. The substantive sentences to run concurrently. Respondent No. 3 (Original Accused No. 3) and respondent No. 11 (Original Accused No. 23) are also convicted and sentenced under Section 324 of the I. P. C. Both of them to suffer R. I. for one year and to pay a fine of Rs. 1000/-, in default of payment of fine, to undergo further R. I. for six months. They shall also be entitled to get the benefit of Section 428 of the Cr. P. C. ,

The convicted accused shall surrender to their bail bonds within two weeks. The bail bonds of others are cancelled. Certified copy is expedited.


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