- (1.) This appeal is brought by special leave from the judgment of the Bombay High court, dated 29- 30/03/1967, in Criminal appeal No. 1560 of 1965.
(2.) The prosecution case was that on 12/12/1964, Vijay Kumar patil, Vithal Lad and Subhas Nagvekar and the deceased Ghandrakant Gajna had gone to Chinchpokli at about 5.30 p. m. in order to play a game of hututu. They finished their game at about 7.30 or 7.45 p. m. and started their journey back to their houses by a local train from Chinchpokli station. They alighted at the Dadar railway station at about 8 p. m. and proceeded oil foot via Kabutarkhana and Kumbharwada land in order to go to their respective houses in Agar Bazar locality. When they came near the building meera Sadan they heard someone shouting from behind "catch him. He is Mohan's brother" and the three appellants came and surrounded Vijaykumar. Appellant No, 2 caught hold of Vijaykumar by his shirt and started giving him first blows. Appellant No. 1 also arrived thereafter and assaulted vijaykumar on his legs with a stick which he was carrying. Chandrakant intervened and questioned the appellants as to why they were assaulting Vijaykumar in that manner. Thereupon appellant No. 2 took out an open knife from his right side trouser pocket and dealt a knife blow on Ghandrakant on the right side of his abdomen. Appeallant No. 1 also struck Chandrakant with a stick on his head. P. W. s Vithal and Subhas who were standing nearby ran towards the Portuguese Church. Vithal hired a taxi put Chandrakant in the taxi and took him to the Dadar police station. When Vithal and Ghandrakant arrived at the Dadar police station, Vijaykumar had already reached the police station and he was giving his statement to S. I. Bhave who was in charge of that police station then. S. I. Bhave arranged to send Chandrakant to Podar Hospital with the custody of police constable, P. W. Deshmukh. The injuries of Chandrakant were examined by Dr. Gavde. Appellant No. 3 was arrested at 9.15 p. m. the same night. The other two appellants were arrested at about 1 1.30 p. m. Chandrakant's condition became serious and at 6.45 p. m. on December 13, Chandrakant died of his injuries inflicted upon him. The defence of appellants 1 and 2 was that they were falsely implicated on account of enmity. They further alleged that there were two factions in the area and that there was rivalry between the two factions. The defence of appellant No. 3 was that there was an incident earlier in the day in which he was arrested by the police at 8 p. m. and at the time when he was arrested by the police at 8 p. m. and at the time when the present offence was alleged to have been committed he was in fact in the Dadar police station lock-up. The Sessions Judge held that the evidence of three eye witnesses vijaykumar, Vittal and Subhas could not be believed. The statement of s. I. Bhave that he recorded the first information report at 8.45 p. m. conflicted it the entry which shows that at 8.30 p. m. S. 1. Bhave left the in station for enquiry of a traffic accident on Sayani Road and had not returned from the investigation of the offence to the police station till about 11.40 p. m. the same night. The Sessions Judge therefore held that thefirst information report lost all its probative value. The Sessions Judge found that the prosecution has not established the case and acquitted all the appellants. The State of Maharashtra preferred an appeal to the High court which allowed the appeal and convicted the appellants of the charges under Section 324, read with Section 34, 1. P. C. and sentenced them with rigorous imprisonment for six months. The High court accepted the explanation of s. I, Bhave that at about 8.30 p. made made an entry in the station diary with a view to go to the Sayani Road accident spot. In the meantime P. W. Vijaykumar came to the police station with some injuries on him. S. I. Bhave did not, therefore, go out of the police station but deputed one of his constables, namely, P. G. No. 10080/f to go and make inquiries at the place of the traffic accident. He himself remained at the police station and recorded the statement of Vijaykumar. He completed recording the statement at about 10. 30 p. m. The High court accepted the explanation of s. I. Bhave for various reasons. In the first place appellant no. 3 was put in the police lock-up at 9.15 p. m. the same night and this is supported by entry in the police register Ex. 41. So far as appellants 1 and 2 are concerned the head constable Nadkarni had deposed that he was given instructions by S. I. Bhave at about 11.45 p. m. The evidence of Nadkarni was not challenged by the defence. The records of the Podar Hospital also show that deceased Chandrakant was admitted at about 8.15 p. m. and P. W. Vijay kumar was also treated in the hospital at 9.10 p. m. , vide the entry in the hospital register Ex. 15. In view of the documents the High court has accepted the explanation of S. I. Bhave that he did not actually leave the police station for Sayani Road traffic accident at 8.30 p. m. but continued to remain at the police station for investigation of the present case. With regard to the evidence of the alibi of appellant no. 3 the High court considered the evidence of defence witness Nadan Rawat and discarded it as false. On the contrary the High court held that the three eye witnesses P. W. s 1, 2 and 3 have given true evidence in the case and on the basis of their statements convicted the appellants on the respective charge.
(3.) On behalf of the appellants it was contended that the High court should not have accepted the explanation of S. I. Bhave with regard to entries in Exts. 55 and 56 and should have held that S. I. Bhave was not in Dadar police station on the night of 12/12/1964. It was also argued that the story of S. 1. Bhave that appellant no. 3 was arrested at 9.15 p. m. was untrue and the evidence of Nadan Rawat should have been accepted on this point. It was said that the High court had no justification for reversing the judgment of the Sessions Judge who acquitted the appellants.;