IMPORTANT POINT
Prosecution is bound to offer explanation as to inordinate delay in recording statements of material witnesses and effect of such inordinate delay has to be examined in facts and circumstances of each case:

JUDGMENT

R.K. Datta, J. - The appellant was tried for the murder of deceased Jalandar Fulzele, under Section 302 of I.P.C. The prosecution had examined 23 witnesses in support of the charge. After assessment of evidence, the Trial Court convicted the appellant under Section 302 of I.P.C.

2. In order to appreciate the submissions advanced by learned advocate for the appellant and the learned Additional Public Prosecutor, it is necessary to briefly enumerate the prosecution case. The prosecution case is that on 15-5-1990 at 3.30 p.m. at Pulgaon near Bus Station, the appellant came from the backside of the deceased and inflicted one blow on the backside of the deceased and when the deceased turned around, the appellant inflicted second blow on the chest. The deceased was taken to the Hospital where he expired at 8.30 p.m. on the same date. The medical evidence shows that there were two injuries on the person of the deceased namely one on front chest region near the heart and other on the backside. The prosecution had examined large number of witnesses, many of whom did not support the prosecution case and declared hostile, but nothing could be elucidated from the said witnesses during the cross examination by the public prosecutor.

3. P.W. 12 - Dharampal, Municipal Councillor was examined as eye witness of the incident who has supported the prosecution. In addition to that evidence, the prosecution has relied upon the oral dying declaration said to have been made by deceased before the witness P.W. 11 Haridas as also to the wife of the deceased namely Sulochana P.W. 18. The prosecution had also relied upon the written statement exhibit 76 said to have been recorded by the deceased himself, but the Trial Court has not placed reliance on the same, as can be seen from para 26 of the impugned judgment. The Trial Court had relied upon the statement of Dharampal P.W. 12 Haridas P.W. 11, and Sulochana P.W. 18. In addition, the Trial Court also relied upon the statement of the Investigating Officer relating to the disclosure and recovery at the instance of the appellant, even though, the panchas in respect of the said discovery and recovery had turned hostile. The Trial Court had also likewise accepted the cycle hired theory by the appellant which had also not been supported by the prosecution witnesses examined in that behalf. A brief reference to the prosecution witnesses who had turned hostile is necessary at this stage.

4. P.W. 1 - Vijay who was eye witness to the incident had stated that he had not seen the incident. He was declared hostile and permission was granted to the A.P.P. to cross examine the witness. There has been practically no cross examination by the A.P.P. except for putting to the witnesses what he had stated before the police. This witness in the cross examination admitted that before the Magistrate he had stated that he had not seen the incident. This witness was taken for the purpose of recording the statement under Section 164 of Criminal Procedure Code on 21-6-1990.

5. P.W. 2 - Purushottam who is also stated to be eye witness did not support the prosecution case and stated that he had not seen the incident. Even he was also likewise declared hostile and A.P.P. was granted permission to cross examine. Once again practically there was no cross examination by A.P.P. except for putting the statement to the witness what he had stated before the police. This witness was also taken for recording his statement under Section 164 before the J.M.F.C. on 21-6-1990 and this witness has stated that he had told the Magistrate that he did not know anything about the incident. P.W. 3 Devidas is a Pancha of seizure of Razor knife, but he did not support the prosecution case. He stated that the accused was not present in the Police Station and that no razor was produced or seized in his presence. The witness was likewise declared hostile and the learned A.P.P. was permitted to cross examine the witness. Except for suggestions ther