1 apeal348.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.348 OF 2016
1) Mr. Arjun s/o Arun Sheel,
Age 31 years, Occupation - Labour,
R/o Chankainagar, Gadchiroli.
2) Mr. Raju s/o Vitthal Kantakwar,
Age 61 years, Occupation - Labour,
R/o Chankainagar, Gadchiroli. .... APPELLANTS
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Armori,
District Gadchiroli. .... RESPONDENT
______________________________________________________________
Shri Rajnish Vyas, Advocate for the appellants,
Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 13 OCTOBER, 2017.
th ORAL JUDGMENT :
The appellants are aggrieved by the judgment and order dated 17-8-2016 in Sessions Trial 21/2011 delivered by the learned Sessions Judge, Gadchiroli, by and under which the appellants are convicted for offence punishable under Section 353 read with Section ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 2 apeal348.16 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.1,000/-, and are further convicted for offence punishable under Section 65(a)(d) of the Maharashtra Prohibition Act (hereinafter referred to as the "Act) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.500/- and are further convicted for offence punishable under Section 83 of the Act and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.500/-.
2. The accused were prosecuted for offences punishable under Sections 307, 353, 332, 427 read with Section 34 of the Indian Penal Code and under Section 65(a)(d) and 83 of the Act.
3. The gist of the prosecution case is that on 23-9-2010, whilst travelling by green colour maruti car bearing registration No.MH-31/BB-5356, the accused, in furtherance of their common intention, attempted to commit murder of informant Narendra Bambole and other police personnel by deliberately giving a dash to the police vehicle and in the process causing damage to the vehicle of the police department. The case of the prosecution is that the accused ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 3 apeal348.16 were found transporting twenty boxes of illicit liquor.
4. The case of the prosecution is that the informant Narendra was attached to Police Station Armori as Naik Police Constable. He was on patrolling duty alongwith Police Inspector Mane, other police staff and two home guards on Vainganga River Bridge on 23-9-2010. At 6.30 p.m. or thereabout one green colour maruti 800 car was noticed approaching from Bramhapuri in high speed. The patrolling squad noticed some cartons of liquor in the car and gave a chase in the police gypsy. The maruti car turned back towards Armori in high speed and again took a turn from Hitkarni School towards Bramhapuri. The informant who was driving the police gypsy overtook the maruti car. However, the maruti car deliberately dashed against the police gypsy due to which both the police gypsy and the maruti car turned turtle. The police personnel and the accused received injuries in the incident and were sent to Sub-District Hospital, Armori. On the basis of the report of Narendra, first information report for offence under Section 307 read with Section 34 of the Indian Penal Code and Sections 65(a)
(d) and 83 of the Act was registered vide Crime 53/2010.
5. The spot panchanama was conducted, the boxes of illicit ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 4 apeal348.16 country liquor were seized vide Exhibit 31, statements of witnesses were recorded and on completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Armori who committed the case to the Sessions Court. The Sessions Court framed charge vide Exhibit 23. The accused abjured guilt and claimed to be tried. The defence of the accused was that it was the police gypsy which dashed against the maruti car in which the accused were travelling and that the accused were not responsible for the accident.
6. The learned Counsel for the accused Shri R.R. Vyas submits, and not without justification, that even if the evidence of the prosecution is accepted at face value, offence punishable under Section 353 read with Section 34 of the Indian Penal Code is not established. The learned Counsel invites my attention to the testimony of the informant Shri Narendra Bambole and in particular the following portion of the cross-examination :
"We had chased Maruti car as we suspected that vehicle. We were pressurizing driver of Maruti car to stop the same. For that purpose, we were also threatening him to fire on them. At that time, dark had fallen. Although we had given dash by our gypsy car to Maruti car, driver of Maruti car was not halting car. This process was going on from Vainganga river bridge upto village Arsoda. When driver of Maruti car had taken car from Armori towards Bramhapuri, we were trying to overtake the vehicle. At that time, driver of Maruti car ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 5 apeal348.16 was not allowing us to overtake the vehicle. It is not correct to say that at that time of overtaking of Maruti car the tyre of gypsy vehicle was burst and hence, our gypsy car had turned down. It is not correct to say that driver of Maruti car had not identified our vehicle. It is not correct to say that hence, due to fear the driver of Maruti car was not halting car. It is not correct to say that while overtaking Maruti car, our gypsy vehicle had gone below the road and hence, turned down."
7. Section 353 of the Indian Penal Code reads thus :
"353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
8. Shri R.R. Vyas, learned Counsel for the accused is justified in contending that the basic ingredients constituting offence punishable under Section 353 of the Indian Penal Code are not established by the prosecution. The evidence of the informant who was driving the police gypsy would suggest that the maruti car in which the accused were travelling was being chased by the police gypsy. The police personnel were threatening the driver of the maruti car that the police personnel ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 6 apeal348.16 would open fire. It is admitted that it was dark. It is further admitted by the informant that it was maruti gypsy which initially dashed the car in which the accused were travelling. It is true that the witness denies the suggestion that the accident occurred as the tyre of the maruti gypsy burst. Be that as it may, it is more than apparent, that even if the entire evidence is taken at face value, there was neither an assault nor use of criminal force with the mens rea or the intention of preventing or deterring the public servant in the execution of duty as such public servant. The cross-examination of the driver of the police gypsy creates sufficient doubt about the veracity of the prosecution case that the car in which the accused were travelling deliberately dashed the police gypsy. The finding of guilt recorded by the learned Sessions Judge is manifestly unsustainable.
9. In so far as offences punishable under Sections 65(a)(d) and 83 of the Act are concerned, the learned Additional Public Prosecutor Smt. Mayuri Deshmukh in all fairness did not dispute the submission of the learned Counsel for the accused that although the alleged incident occurred at 6.30 p.m. in the evening on 23-9-2010, the seizure of the illicit liquor cartons was shown to have been made at 6.40 a.m. in the morning on 24-9-2010. The vehicle from which the ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 ::: 7 apeal348.16 seizure is shown was lying unattended and abandoned between 6.30 p.m. on 23-9-2010 and morning hours on 24-9-2010.
10. In this view of the matter, I have no hesitation in holding that the alleged seizure of the illicit liquor cartons from the maruti car in which the accused were travelling is of no significance. The alleged seizure from the car which was unattended and abandoned for more than twelve hours must be discarded as of no relevance or reliability. The conviction for offence punishable under Sections 65(a)(d) and 83 of the Act deserves to be set aside.
11. The judgment and order dated 17-8-2016 delivered by the learned Sessions Judge, Gadchiroli in Sessions Trial 21/2011 is set aside. The accused are acquitted of the offence punishable under Section 353 read with Section 34 of the Indian Penal Code and Sections 65(a)(d) and 83 of the Act. Fine paid by the accused, if any, be refunded to them. Bail bonds of the accused shall stand discharged.
The appeal is allowed accordingly.
JUDGE adgokar ::: Uploaded on - 23/10/2017 ::: Downloaded on - 24/10/2017 00:11:38 :::