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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.483 OF 2004
Ganesh @ Mankya s/o Nandkishore Thakur,
Aged about 26 years,
Resident of Kochar Ward, Hinganghat,
Tahsil and District Wardha. .... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O. Hinganghat,
District Wardha. .... RESPONDENT
______________________________________________________________
Shri N.A. Badar, Advocate for the appellant,
Ms. Ritu Kaliya, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 11 DECEMBER, 2017.
th ORAL JUDGMENT :
The appellant is aggrieved by the judgment and order dated 23-7-2004 passed by the learned 2 nd Ad hoc Additional Sessions Judge, Wardha in Session Trial 135/2003, by and under which the appellant is convicted for offence punishable under Section 307 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 ::: 2 appeal483.04 imprisonment for five years and to payment of fine of Rs.200/-.
2. Heard Shri N.A. Badar, learned Advocate for the appellant and Ms. Ritu Kaliya, learned Additional Public Prosecutor for the respondent.
3. The appellant (hereinafter referred to as the "accused"), alongwith Indu @ Indrasen Pakharani and Pankaj Lonare faced trial for the charge of entering into criminal conspiracy and in pursuance thereof for attempt to kill one Gajanan Fulmali by country made revolver (deshi katta).
4. The gist of the prosecution case is that between 9-00 to 9-30 p.m. on 23-6-2003 Gajanan Fulmali and his friend one Manoj Kumare were standing infront of a pan shop near Laxmi Talkies, Hinganghat. The accused alongwith co-accused Pankaj Lonare came on scooter and started abusing Manoj. Gajanan requested the accused and Pankaj Lonare not to abuse his friend Manoj. The accused whipped out a deshi katta and fired one round on the person of Gajanan, who suffered injury on the right side of the abdomen. The accused fled from the scene. Gajanan became unconscious, Police ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 ::: 3 appeal483.04 Constable Rupam Govardhan and Manoj Kumare carried the injured Gajanan to the Police Station, Gajanan lodged report on the basis of which offence under Section 3 read with Section 25 of the Indian Arms Act and under Section 307 of the IPC was registered. Gajanan was referred to hospital for medical examination, the investigation commenced and the accused was arrested. Pursuant to memorandum of admission, deshi katta and live bullet were recovered from below the steel drum in the kitchen of the house of the accused. Spot panchanama was recorded, the used bullet was seized from the spot, statements of witnesses were recorded, the said weapon, used bullet and live bullet were sent to the Ballistic Expert. The investigation culminated in submission of charge-sheet in the Court of Judicial Magistrate First Class, Hinganghat, who committed the case to the Sessions Court.
The learned Sessions Judge framed charge for offence punishable under Sections 307 and 120-B of the IPC, the accused abjured guilt and claimed to be tried in accordance with the law and the defence was of total denial. Pankaj Lonare-accused 3 did not appear before the Court after framing of the charge and was treated as an absconder.
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5. The prosecution examined as many as twelve witnesses to wit :
(a) P.W.-1 Raju s/o Gulabrao Kotakar, a panch to the confessional statement of Ganesh Thakur (Exhibit 34).
(b) P.W.2 Arun s/o Marotrao Pullarwar, as an eyewitness who was working with Laxmi Talkies and who was present at the talkies gate during 9-00 to 12-00 p.m. cinema show (Exhibit 35).
(c) P.W.3 Vilas s/o Ganbaji Nimgade, as an eyewitness (Exhibit 36).
(d) P.W.4 Prashant s/o Ramchandra Thakare, a panch to the spot panchanama and seizure panchanama from the spot (Exhibit 37).
(e) P.W.5 Dr. Sachin s/o Vijay Dahake, Medical Officer (Exhibit 40).
(f) P.W.6 Rupam s/o Diwakar Gowardhan, Police Constable, Buckle No.180 (Exhibit 43)
(g) P.W.7 Sayyad Nasir s/o Sayyad Hassan, as an eyewitness (Exhibit 41).
(h) P.W.8 Babalu @ Subhash s/o Laxmanrao Walde, a panch to the confessional statement (Exhibit 52). ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 :::
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(i) P.W.9 Gajanan s/o Vitthalrao Fulmali, a victim (Exhibit
53).
(j) P.W.10 Manoj s/o Dadarao Kumare (Exhibit 55).
(k) P.W.11 PSI Shri Dilip s/o Gangaram Masram (Exhibit 56),
and
(l) P.W.12 Vasant s/o Champatrao Sayam, Police Inspector
(Exhibit 78).
6. The prosecution has examined P.W.2 Arun Pullarwar, P.W.3 Vilas Nimgade and P.W.7 Sayyad Nasir as eyewitnesses.
Concededly, having refused to support the prosecution, the said witnesses were cross-examined pursuant to permission granted under Section 154 of the Indian Evidence Act, however, nothing is elicited in the cross-examination to take the case of the prosecution any further.
7. The injured witness Gajanan Fulmali (P.W.9) did not support the prosecution. P.W.9 has deposed that he did not see the assailant. The prosecution was permitted to put questions in the nature of cross-examination to P.W.9. In the cross-examination, P.W.9 denied the suggestion that the accused arrived on scooter alongwith Pankaj Lonare and abused Manoj Kumare. The witness categorically ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 ::: 6 appeal483.04 denied that the accused pulled out a revolver from the waist and threatened the injured witness. The injured witness has further denied that the accused fired at him and it is also denied that the witness told the police that it was the accused who had fired.
P.W.10 Manoj Kumare failed to identify the accused in the Court as the person named by him to the police and was treated as a hostile witness. In the cross-examination, although he stated that the accused Mankya @ Ganeshsingh Thakur is present in the Court, he volunteered that he was not present on the spot. It would be apposite to reproduce the cross-examination for the prosecution and the cross- examination for the accused.
"Cross-examination by APP for the State :
Today accused Mankya @ Ganeshsingh Thakur is present in the Court. Witness volunteers that he was not present on the spot.
Cross-examination by Shri P.S. Taksande, Advocate for accused No.1 :
I was not acquainted with accused before the incident. Some accused were brought by police by arresting them. I was shown by police the present accused Mankya Thakur as Mankya @ Ganeshsingh Thakur.
We were told the names of accused by police. Accordingly I am stating the name of Mankya Thakur." ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 :::
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8. The eyewitnesses including the injured have refused to support the prosecution. Nothing is elicited in the cross-examination for the prosecution to assist the prosecution. The injured P.W.9 Gajanan Fulmali has persistently denied that he was fired at by the accused. The fact that an omission is brought on record and proved through the Investigating Officer, would hardly make the said portion of the previous statement admissible in evidence. The learned Sessions Judge could not have proceeded on the assumption that such proved omission is substantive evidence. Be it noted, that it is categorically denied by the injured witness that he gave any statement to the police implicating the accused.
9. P.W.1 Raju Kotkar and P.W.8 Babalu Walde, who are panchas to the memorandum of admission recorded under Section 27 of the Indian Evidence Act, did not support the prosecution. The learned Sessions Judge has held that the recovery of the weapon is duly proved by the Investigating Officer. P.W.4 Prashant Thakare, who is panch to the spot panchanama and the seizure of the used bullet from the spot also did not support the prosecution and the said panchanama is held proved through the evidence of the Investigating Officer P.W.11.
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10. I am afraid, that even if the discovery under Section 27 of the Indian Evidence Act is held proved through the evidence of the Investigating Officer (P.W.11), in view of the fact that every material witness including the injured and the panch witnesses have failed to support the prosecution, the conviction cannot be based on the discovery of the weapon. On a holistic appreciation of the material on record, I find that the judgment impugned is wholly unsustainable and the same is set aside.
The accused is acquitted of the offence punishable under Section 307 of the Indian Penal Code. Bail bond of the accused shall stand discharged. The fine paid by the accused, if any, shall be refunded to him.
JUDGE adgokar ::: Uploaded on - 12/12/2017 ::: Downloaded on - 14/12/2017 01:48:19 :::