(V.M. Kanade, J.)

1. The Appellant–Original Accused no. 2 has filed this appeal challenging the Judgment and Order passed by the Additional Sessions Judge, Greater Bombay dated 28th November, 2006. By the said Judgment and Order the learned Additional Sessions Judge was pleased to convict the appellant for the offence punishable under Section 302 of the Indian Penal code and sentence him to suffer imprisonment for life and to pay fine of Rs. 200/- and in default of payment of fine to suffer further R.I. for one month. The Trial Court however acquitted Accused – Appellant herein for the offence punishable under Section 452 of the Indian Penal Code and Section 25 r/w with Section 27 of the Arms Act and also under Section 135 of the Bombay Police Act.

2. Brief facts are as under:-

The prosecution case in brief is that on 20th July, 1986, PW.1 Sarvesh Jaising Chavan and one other person Silvestor James Peter found one John Lazoras lying in an injured condition in a shop known as R.G. Patel Stores situated in Bamanwada area at Vile Parle. According to the prosecution they gave intimation about this fact to the Police and pursuant to the said information the Investigating Officer, Firoz Sorabji Ganjia – PW.3 attached to the Sahar Air Port Police Station came to the spot alongwith the two informants and shifted the injured John to the Cooper Hospital for treatment and after taking permission of Dr. Tillu, he recorded the statement of John. The prosecution case is that the injured John informed PW.3, Firoz Ganjia that the Appellant, Vasant Ramchandra Gaikwad and the other accused Raju Mama, (expired during the pendancy of the trial) assaulted him with sword and sickle. The statement of the John was recorded and it was read over to him in Hindi, however, his thumb impression or signature could not be obtained and therefore the endorsement of Dr. Tillu was taken on the statement of the John who later on succumbed to the injuries and died at about 5.00 p.m. on 20th July, 1986. His statement was treated as an FIR and offence punishable under Sections 452, 302 of Indian Penal Code was registered against the appellant and deceased Raju Mama. During the course of the investigation, PW-3 seized the blood stained clothes and wrist watch of the deceased John in the panchanama at Exhibit -15. Blood stains were found on the gunny bags containing food grains and a plastic can kept in the shop. He also found a railway pass, identity card of accused, Vasant, his batch number issued by the R.T.O, one pair of slippers and one single slipper and a panchanama was prepared at Exhibit-16 of the said discovery. The accused were arrested on 21st July, 1986. After they surrendered to the police, a Arrest panchanama was prepared. The postmortem was performed by Dr. Prabhakar Ganesh Bhave, who gave opinion that the cause of death was due to multiple injuries sustained by the deceased. The Memorandum Panchanama was also prepared in respect of recovery of the clothes of the appellant vide Seizure panchanama, Exhibit-20 and Exhibit-20/1. Clothes and weapons were recovered at the instance of deceased Raju Mama at Memorandum Panchanama, Exhibit-19 and Seizure Panchanama, Exhibit-19/1. Blood samples of both the accused were taken and blood of the deceased was also sent to the C.A. The C.A. Report was received, in which it was mentioned that the blood group of deceased Raju was 'A', blood group of Appellant, Vasant was 'O' and the blood group of deceased John was 'B'. In respect of the clothes which were sent to the C.A., report stated that the blood detected on Exhibit-2 to 17 was human and was of 'B' group. The statements of witnesses before whom the deceased gave the dying declaration was recorded by the Investigating Officer, charge-sheet was filed, the accused pleaded not guilty of the said charge. The prosecution examined only three witnesses P.W.1, Sarveshkumar J. Chavan, P.W-2, Dr. Prabhakar G. Bhave, who performed the postmortem and the Investigat