- (1.)The appellants have questioned the correctness of the judgment and order dated 10.7.2012 passed by the Additional Sessions Judge, Vasai, District Thane in Sessions Case No.329 of 2007.. By the said judgment and order dated 10.7.2012 the appellant- original accused No.2-Haresh Patil has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- and in default of payment of fine further rigorous imprisonment of one year. The appellant -original accused No.1 Kamlesh @Babla @ Bablya Shankar Malpedi, accused No.2 Haresh Patil and accused No.3-Faim @ Lala Ibrahim Khan have been convicted for the offence punishable under Section 120B of the Indian Penal Code and sentenced to suffer life imprisonment with a fine of Rs.10,000/- each and in default of payment of fine to further suffer rigorous imprisonment for one year each. The Trial Court has thus convicted the original accused No.1 Kamlesh @ Babla @ Bablya Malpedi and accused No.3 Faim Lala Ibrahim Khan for the offence punishable under Section-120B of the Indian Penal Code. By the same impugned judgment and order the Trial Court was pleased to acquit the original accused No.4- Durgeshkumar @ Durga Ramshankar Pande from all the charges levelled against him. For the sake of brevity the appellants named herein above will be referred to with their original accused numbers as they were before the Trial Court.
(2.)The facts which are enumerated from the record and necessary to decide the present appeal can briefly be stated as under:-
(i) The date and time of incident was 2.4.2007. Between 9.00 to 9.30p.m. the complainant Arun Chandran (P.W.3) along with his friend Amit Mishra (P.W.4) were proceeding towards Vasai (East) on their scooter. On the bridge, they saw one person was assaulting by stick to the victim. Complainant Arun Chandran (P.W.3) and his friend Amit (P.W.4) stopped their vehicle and rushed towards the person (victim) who was being assaulted. As soon as Arun and Amit rushed towards the person who was assaulting the victim by stick, he ran away.

(ii) Arun (P.W.3) and Amit (P.W.4) thereafter took the injured from an auto rickshaw to the hospital. From the diary which was found from the injured person they came to know the name of the injured as Faim Ibrahim Khan. Arun (P.W.3) intimated the family members of Faim Khan. Arun also lodged FIR (Exh.71) with Manikpur Police Station. On the basis of the said First Information Report bearing CR NO.I-125/2007 came to be registered. The investigation was initially carried out by PSI Naikwade of Manikpur Police Station. Mr. Naikwade drew the spot panchanama, Inquest panchanama and the seizure panchanama. He also recorded the statements of some of the witnesses. The said investigation was subsequently transferred to PSI Nitin Thakare (PW-22) of LCB, Thane (Rural). He arrested the accused persons. He also discovered the sticks at the instance of accused No.1 Kamlesh under Section 27 of the Evidence Act. PSI Nitin Thakare collected the call detail record pertaining to the mobile phones of the appellants. He also gathered the post mortem notes and Chemical Analysis report during the course of investigation. After completion of the investigation PSI Nitin Thakare submitted the charge sheet in the court of J.M.F.C. Vasai at Vasai under Section 302 and 120B of the Indian Penal Code.

(iii) As the offence under Section-302 of the I.P.C. was exclusively triable by the Court of Sessions, the learned J.M.F.C. committed the said case to the Court of Additional Sessions Judge Vasai, At Vasai. After committal of the case, the learned Trial Court framed the charge below Exh.18.The said charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution in support of its case and to prove the guilt against the accused persons examined in all 22 witnesses. The learned Trial Court after recording the evidence and after hearing the parties to the said case was pleased to convict the appellants as stated herein above.

(3.)The present case is based on ocular evidence of Arun Chandran (P.W.3), Amit Mishra (P.W.4) and Siddesh Kadam (P.W.21), P.W.3 Arun Chandran in his testimony has deposed that on 2.4.2007 he along with his friend Amit Mishra (P.W.4) were going towards Vasai (East) by a scooter. On the bridge they saw one person assaulting by stick to the victim. He therefore, stopped his vehicle and went to see what was happened. In the mean while, the person who was assaulting the other person (deceased) threw the stick there and ran away. P.W.3 Arun thereafter took the injured person by auto rickshaw to the hospital. He also found a diary near the injured person. The name of the injured person was Faim Khan. The said injured was admitted to Kanekar hospital. P.W.3-Arun Chandran gave intimation about the incident to the family members of Faim Khan. He handed over the said diary to the police. In the night he received a phone call from the police that the said injured expired. Thereafter, the police obtained his complaint which is at Exh.71. He had seen the person who had assaulted the deceased. He was called for identification parade wherein he identified the said person. He was Haresh Patil (Accused No.2).
In the cross examination this witness had admitted that Amit (P.W.4) was driving scooter. From the other side of the road he saw the accused assaulting. That, when he carried the injured (Munna) to the hospital, he was unable to talk. He further admitted that when he reached on the bridge it was about 9.00 to 9.30 p.m. He had seen the assailant assaulting the victim from the distance of about 10 to 15 ft. and the scooter on which he was pillion rider was at a speed of about 30 K.M. per hour. That, they reached near the injured within 30 to 40 seconds after stopping of the vehicle and by that time the assailant ran away.