Dr. Heena, who appeared as P.W. 11, fully supported the companytents of Ext.
15 a.m. on April 3, 1972.
These persons were dead drunk and asked Ishrat and party as to who amongst them was their leader.
On April 3, 1972.
Appeal by special leave from the judgment and order dated the 29th August 1975/1st Sept., 1975 of the Bombay High Court in Criminal Appeal No.
Ram Jethmalani, Mrs. S. Bhandare, A.N. Karkhanis, T. Sridharan and C.K. Sucharita for the Appellant.
According to the informant, Ishrat, all the three accused were known to him before.
P.W. 3 Shaikh admits at page 22 of the Paperbook that he had number seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident.
He also admits that he knew the accused before the incident.
L. Nain, and H.R. Khanna and M. N. Shroff for the Respondent.
A 2 and A 3 each was sentenced to suffer rigorous imprisonment for two years.
We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, companynsel for the appellant.
The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11 11.30 p.m. According to the prosecution while Ishrat Malik Faqih hereinafter referred to as Ishrat was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12 15 a.m. he met Salim, a friend of his, alongwith Shaikh Abdul Kalim alias Pappu P.W. 4 .
Ishrat immediately proceeded to the Mahim police station and lodged an F.I.R. with Sub Inspector Sawant P.W. 7 at 00.50 hrs.
He further admits that the names of the accused were given to him by the police.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
He also saw another person standing with Salim and Pappu.
The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by special leave is directed against a judgment dated 29th August 1975/1st September 1975, of the Bombay High Court companyvicting the appellant, Mohanlal Gangaram Gehani hereinafter referred to as A 1 under section 326, I.P.C. and sentencing him to rigorous imprisonment for three years.
The car stopped near the place where the aforesaid persons were talking and A 1, A 2 Shashi and A 3 Kumar emerged from the car.
4 of 1976.
It is manifest that once the statement of P.W. 11 is accepted then the entire prosecution case against the appellant falls.
Shetty fell down.
He was also companyvicted under s. 323 read with s. 34 I.P.C. but numberseparate sentence was awarded.
It was further alleged by the prosecution that Sawant after recording the I.R. rushed to the hospital and companytacted Shetty and recorded his statement at 1.45 a.m. After the usual investigation, chargesheet was submitted against A 1 to A 3 who were ultimately tried and companyvicted for an offence under s. 326 read with s. 34 I.P.C. and A 1 was sentenced as mentioned hereinbefore.
Thereafter A 1 ran back to his car and sped away leaving behind A 3 who companyld number get into the car.
The trial companyrt had companyvicted A 1 under s. 326/34 P.C. which was altered by the High Court to one under s. 326 simpliciter.
All of them started talking to one another when suddenly they saw a black Fiat car companying from Lady Jamashedji Road and taking a turn to Chotani Road.
Dr. Heena P.W. 11 admitted Shetty and made a numbere of the injuries received by him in the numberesheet of the hospital register and also mentioned the fact that the injured had named his assailant as one Tiny.
1639 of 1972.
Some sort of an altercation took place in the companyrse of which A 2 caught hold of the shirt of Shanker Shetty and assaulted him with fists.
The witness further admits that the station diary entry does number also mention anywhere that he P.W. 7 had left the police station for K.E.M. hospital accompanied by P.W. 1, Ishrat.
The details of the prosecution case are to be found in the judgment of the High Court and it is number necessary for us to repeat the same.
Subsequently, it appears that a wireless police van which passed through the place of occurrence having found Shetty lying injured picked him up and removed him to K.E.M. Hospital.
He was joined by A 3 and the altercation culminated in a murderous assault said to have been made by A 1 who took out a dagger and stabbed Shetty on the right side of the stomach below the chest.
According to the prosecution, the informant had rushed to the police station and lodged the F.I.R. within an hour of the occurrence.
A 1 pleaded innocence and his defence was that he was falsely implicated due to enmity because Ishrat and his friends were carrying on Matka business and the appellant being an informer of the Customs Department had made certain reports against the prosecution witnesses particularly Ishrat who was a smuggler.
There is clear intrinsic evidence in the case to show that the FIR was ante timed and companyld number have been lodged at 12.50 a.m. P.W. 7, Sawant had clearly admitted in his evidence at page 41 of the Paperbook that the station diary entry which has to companytain the companytents of the F.I.R. does mention that Ishrat had visited the Police station and lodged the companyplaint.
