IMPORTANT POINT
It is well settled that the courts are entitled to rely upon a part of the testimony of a witness, who has been permitted to be cross-examined by the prosecution.

JUDGMENT

S.B. Sinha, J.—

Appellant who was accused No. 2 before the trial judge is before us, aggrieved by and dissatisfied with the judgment dated 16.6.2006 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No. 31 of 1991 whereby and whereunder appeal preferred by him from a judgment dated 22.1.1991 passed by the Additional Sessions Judge, Chandrapur convicting him for commission of an offence under Section 302/34 of the Indian Penal Code was dismissed. The parties are closely related. The deceased was one Kannu Shende. Accused No.1 (since deceased) was Baliram. Appellant being the accused No. 2 before the Ld. Trial Judge was the brother in law of said Baliram. There were two eye witnesses to the occurrence in question. P.W. 3 Shobha was his wife and P.W. 8 Dnyaneshwar was his son. At this stage, we may notice that Dnyaneshwar later on killed Baliram. He was sentenced to undergo rigorous imprisonment for life. When the trial in this matter was going on, he was undergoing his sentence.

2.Prosecution case is that there had been a dispute by and between the deceased and the said Baliram with regard to the partition of the joint family properties. Deceased Baliram also had asked for the motor cycle belonging to the deceased which was denied. In the midnight at about 2 a.m. on 21.9.1986 both the accused came to the house of the deceased. Accused No. 1 was armed with a large stick known as “Ubhari”. Appellant was armed with a knife. They had shut the door of the room where Dnyaneshwar was sleeping. The door between the room of the deceased and his wife Shobha was, however, open. On hearing a cry of her husband, Shobha came out. Appellant threatened her at the point of a knife asking her not to shout. Both the accused then assaulted deceased Kannu Shende with Ubhari (stick) and knife.

3.P.W. 8 heard the cries of his father. He tried to come out but found the doors closed. He could break open the door. He came out of the room and went to that of his father and saw both the accused coming out of the room. They ran away through the courtyard. He found his father in an injured condition. He also saw bleeding injuries on his person. He shouted for help whereupon 20-25 persons from the locality arrived. Shobha, P.W. 3 disclosed to him that the accused had assaulted the deceased. P.W. 8 went to the Police Patil, Vishwanath, P.W. 1 immediately. He wrote down a Report. P.W. 1 came to the house and thereafter went with P.W. 8 to Sindewahi Police Station where First Information Report was lodged. The Police Station is situate at about 9 kilometers from the Village. The report was recorded at about 6.45 a.m.

4.During investigation, Appellant herein made a confession leading to recovery of the handle of the knife which is said to have been used for causing the murder of the deceased.

5.Before the learned trial judge, inter alia the wife of the deceased was examined. She turned hostile. Two other witnesses P.W. 5, Nilesh and P.W. 7 Uttam who had made statements before the Police that they alongwith Baliram and Ramkrushna came to the village on cycle were also declared hostile. The learned trial judge, however, relied upon the statements of Dnyaneshwar (P.W. 8) and to some extent the deposition of P.W. 3, Shobha. The appellant was found to be guilty of commission of the said offence. Appeal preferred by the appellant thereagainst as noticed hereinbefore has been dismissed.

6.Dr. Rajiv Masudkar, learned counsel appearing on behalf of the appellant in support of this appeal inter alia would submit :-

i)As the sole eye-witness P.W. 3 had turned hostile, a judgment of conviction cannot be sustained.

ii)The High Court committed a serious irregularity in not scrutinizing deeply the statements of P.W. 8 as he was not an eye-witness and furthermore contradicted himself in material particulars.

iii)The butt of the knife having been recovered from an open place, no reliance could have been placed on the recovery thereof.

iv)