The conviction for attempted murder was upheld based on reliable witness testimony and corroborative forensic evidence, establishing the prosecution's case beyond reasonable doubt.

JUDGMENT :

(A.Y. Kogje, J.)

1. The present appeal is preferred by the convict against the judgment and order dated 15.04.2004 in Sessions Case No.160 of 1990 by the Presiding Judge of Fast Track Court, District: Kheda at Nadiad.

By the aforesaid judgment and order, the appellant came to be convicted for offence under Section 307 of the IPC and sentenced to rigorous imprisonment of 5 years and fine of Rs.200/-.

2. At the outset, learned advocate for the appellant has submitted that after the conviction recorded, the appellant was enlarged on bail by this Court by an order dated 21.09.2005 in Criminal Misc. Application No.9538 of 2005 and pending the appeal, the substantive sentence of imprisonment was suspended till final disposal of the appeal. However, it is reported that the appellant has expired on 10.10.2008 for which learned advocate for the appellant has relied upon the Death Certificate dated 10.10.2008 issued by the Talati-cum-Mantri of village – Ratanpur. The appeal being of year 2004 and the appellant having expired in 2008, the appeal would abate. However as the appellant was a government servant and the conviction or otherwise in a criminal offence will have direct effect on the service benefits of the appellant, learned advocate for the appellant has made an oral request that the appeal be proceeded on merits as if the same is being argued on behalf of the legal heir of the deceased appellant.

Considering the fact that the appeal is of the year 2004, the appellant having expired in the year 2008, and till date, there being no application for bringing legal heirs on record to pursue the appeal. However, in the interest of justice, the request made by the learned advocate for the appellant is hereby accepted and the appeal is heard as if being argued by the legal heir of the deceased appellant, otherwise will further prolong the hearing as appeal which is already pending since 2004.

3. Learned advocate for the appellant submitted that the conviction recorded is on an erroneous premise as the trial Court has recorded the conviction by giving importance and treating the dying declaration of the injured witness to be a substantial piece of evidence, whereas, the injured witness having survived, the dying declaration would be merely reduced to a statement, and therefore, the conviction could not have been based on such dying declaration.

4. Learned advocate for the appellant submitted that the prosecution has failed to establish the case against the appellant beyond reasonable doubt as the injured witness himself has not deposed about the firing made by the appellant which caused injury on the injured witness. It is submitted that from the reading of the deposition of the injured witness, it is coming out that the position of the injured witness at the time of firing was such that he could not have visually seen the firing taking place. It is, therefore, only on the basis of presumption that as the appellant who was the colleague of the injured witness in the Police Department, was not standing by him at the time of firing, and therefore, the firing must have been made by the appellant. It is submitted that such deposition is only presumptive of firing by the appellant, but could not be treated as a conclusive evidence of eye witness of firing having taken place at the hands of the appellant.

5. Learned advocate again referring to the deposition of the injured witness that this wit