A.S. Gadkari, J.

1. The Appellant, original accused No.1, has questioned the correctness of the Judgment and Order dated 13 October 2006 passed by the 10th Ad hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No.427 of 2006 thereby convicting him for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.15,000/-, in default of the same to suffer rigorous imprisonment for two years. The Appellant has further been convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to suffer rigorous imprisonment for one year. It has been ordered that the said two sentences shall run concurrently.

2. The brief facts which have been enumerated from the record can be stated as under :

i) P.W.7 – Atmaram Davare, Police Sub-Inspector was attached to Goregaon Police Station on 23 February 2006. That at about 11.30 p.m. one Gangaram Panchal gave him telephonic message that one person in an injured condition was lying in toilet near Teen Dongri, wherein the said public latrine/ toilet is situated. P.W.7 PSI Davare along with his staff immediately rushed to the spot and found that an injured was lying in pool of blood. He admitted the said injured in Cooper Hospital. After examining the said injured person, the concerned doctor gave an opinion that the said person is already dead. P.W.7 PSI Davare thereafter recorded the statement of the said Gangaram Panchal which is dated 24 February 2006 and is at Exhibit 34 on record. The said statement of Gangaram Panchal was treated as First Information Report. On the basis of the said First Information Report, CR bearing No.119 of 2006 came to be recorded. The said First Information Report is at Exhibit 11. P.W.7 PSI Davare thereafter recorded the panchanama of the scene of offence i.e. the spot panchanama which is at Exhibit-12. P.W.7 PSI Davare also seized the clothes of the deceased in the presence of panchas by effecting seizure panchanama which is at Exhibit-32. The said clothes were one pant, underwear and a full T-shirt stained with blood.

ii) P.W.8 Police Inspector Firoz Patel subsequently carried out the investigation pertaining to CR No.119 of 2006. He arrested the accused on 25 February 2006. He also seized the clothes of the two accused persons i.e. the Appellant and original accused No.2 Shekhar @ Babya. P.W.8 PI Firoz Patel seized clothes from the present Appellant having bloodstains by effecting a detailed panchanama which is at Exhibit-29.

iii) P.W.8 PI Firoz Patel recorded the voluntary statement of the Appellant in the presence of panchas. By the said statement the Appellant expressed his willingness to point out the place where he has sealed the weapon which was used in the commission of the said crime. Accordingly, P.W.8 recorded the memorandum statement of the Appellant which is at Exhibit 24. The Appellant thereafter led the police towards Yashwant Nagar, Teen Dongri and took the police towards a hut and from the ceiling of the said hut, he produced one chopper. P.W.8 PI Firoz Patel seized the said chopper by effecting a detailed recovery panchanama. The said panchanama is at Exhibit 25. During the course of investigation P.W.8 PI Firoz Patel recorded the statements of various witnesses. He forwarded the seized articles to Chemical Analyzer along with the forwarding letter. It was revealed to P.W.8 PI Firoz Patel that the name of deceased was Ramesh Kaunder and after concluding the investigation, he submitted a charge-sheet before the Court of competent jurisdiction.

3. After committal of the case to the Court of Sessions, the learned Trial Court framed charge below Exhibit 2 under Section 302 read with 34 of the Indian Penal Code and under Section 37(1)(a) and under Section 135 of the Bombay Police Act. The said charge was read over to the accused persons. The accused persons denied and claimed to be tried. The Learned Trial Court by its judgment