Ramchandra Gopinath Pawar vs The State Of Maharashtra
2002 Latest Caselaw 853 Bom

JUDGMENT

1. The appellant Ramchandra Gopinath Pawar, accused No. 3 in Sessions Case No. 1128 of 1994 is hereby assailing the correctness, propriety and legality of the judgment and order passed by the Additional Sessions Judge, Greater Bombay in the said sessions case wherein he has been convicted for the offence punishable under Section 307 of IPC and has been sentenced to under go RI for three years and to pay a fine of Rs. 500/- and in default to suffer further RI of six months.

2. Shri Shailesh Kantharia, counsel appearing for the said appellant Ramchandra Gopinath Pawar submitted that the learned Additional Sessions Judge committed the error in passing the said order of conviction and sentence against the appellant when there is no cogent, reliable and sufficient evidence to warrant the conviction. He pointed out in this context the evidence of complainant Chandrashekhar P. Shetty, prosecution witness Jaywant Patil, Narayan Khutale, Nagesh Tavnoji and Sadashiv Rane. He submitted that there is variance in their evidence which goes against the prosecution case and makes the prosecution evidence disbelievable. He submitted that test identification parade has been taken in the Detection Room of Crime Branch Office and the witnesses who were to identify the appellant were having full opportunity of seeing him before the identification parade. He submitted that the said identification parade was conducted by disregarding the precautions to be taken at the time of conducting such identification parade. He submitted that the appellant be acquitted by setting aside the said order of conviction and sentence. The submissions advanced on behalf of the defence have been countered by Shri Saste when he submitted that the evidence of Chandrashekhar Shetty has been corroborated by the above mentioned eye witnesses and the discrepancy which has been pointed out by Shri Kantharia is of minor nature. Shri Saste submitted that the identification parade has been held in accordance with the rules made for it and every precaution was taken for avoiding the possibility of identifying witnesses seeing the accused before the identification parade. He submitted that the learned trial Judge has appreciated the evidence correctly, properly and the findings recorded by him are correct and borne out by the evidence on record. He prayed that the appeal be dismissed.

3. In the present case, at the outset, it is necessary to be pointed out that though appellant was charged for committing offences punishable under Section 392, 394, 457 and 458 of IPC and provisions of Sections 3 and 27 of Indian Arms Act, no order of conviction or sentence has been passed against the appellant in respect of any of those offences except Section 307 of IPC. It impliedly means that the trial Court has acquitted the present appellant of all those charges. This point goes against the root of the prosecution case and it nips out from the bud the bid of the prosecution for conviction and sentence. The offences mentioned by Section 457 and 458 do speak about the presence of the present appellant in the premises of said Veena Hotel and Beer Bar being armed with weapon and after committing the trespass with preparation of committing the offence or offences. That gives a death nail to the prosecution case when it alleges that present appellant had made the entry in the said Veena Hotel and Beer Bar armed with a revolver and he did use that revolver for firing the shots in the said hotel and beer bar or out of it. The Complainant Chandrashekhar Shetty stated in his evidence as well as mentioned in his FIR that he was knowing the present appellant before hand. Therefore, so far as PW Chandrashekhar Shetty is concerned, identification parade loses the importance. It has also come in the evidence of other witnesses that they were not also knowing him before hand. Therefore, the evidentiary value of test identification parade loses its normal value. Apart from that, the identification parade has been held in Detection Room of Crime Branch Office of the police officers where witnesses were asked to sit before Special Executive Magistrate Naik did come there to hold the identification parade. In fact, holding the identification parade in such place by itself makes it prima facie suspicious and makes the Court to scrutinize the evidence in respect of that, cautiously and carefully. In the present case, the said test identification parade has been held after two years. If that is so, this Court really wonders as to how this could held the prosecution in this case.

4. After dealing with this aspect of the matter, the Court touches the testimony of prosecution witnesses who were concerned with the main incident. It has been pointed out in above mentioned paragraph that the trial Court has itself acquitted the appellant of offences punishable under Section 457 and 458 of IPC and Sections 3 and 27 of Indian Arms Act. The prosecution has not filed an appeal against acquittal of the present appellant in respect of the charge in context with those offences. Therefore, it goes without any debate that the Court has disbelieved the prosecution evidence in respect of the entry of appellant in Veena Hotel and Beer Bar with a revolver or with a weapon which stands prohibited to be used in public place in view of provisions of Sections 3 and 27 of Indian Arms Act. In addition to that, there is discrepancy of material nature in the evidence of prosecution witnesses namely, Chandrakant Shetty, Nagesh, Jaywant Patil, Sadashiv Rane and Narayan Khatale. It is the evidence of complainant Chandrashekhar Shetty that when appellant Ramchandra entered in the said hotel and Beer Bar with his 4-5 associates armed with revolver and pushed him and ran out of the hotel from the side of counter and he was chased by the present appellant and outside the hotel the appellant shot a bullet from the revolver which did not hit him. His evidence shows that he was frightened and, therefore, ran away. It is natural. The learned trial Judge has lost the sight of this important aspect of the case that Chandrashekhar Shetty was frightened. Therefore, he ran away. When that was so, he was not expected to see back and, therefore, was not expected to know whether the bullet was fired at him or somewhere else. Prosecution has also not come with the case that the said bullet was fired in the midst of crowd so as to make out a case has been indicated by illustration (d) of Section 300 of IPC. Even there is no whisper about it from the prosecution side. Thus, the prosecution cannot take the support of this straw.

5. Other prosecution witnesses were obviously inside the hotel. Therefore, they could not have seen as to whether any bullet was fired from the revolver and who fired it. Chandrashekhar Shetty does not say that the appellant fired the bullet from the revolver which he was holding inside the said hotel. Thus, this discrepancy in the prosecution evidence inherently cuts its bid for conviction and sentence against this appellant from the root. The lame support brought to this main goal by the prosecution collapses shatteringly with these discrepancies exposed during the cross-examination, so far as present appellant is concerned. The learned trial Judge has not noticed it and, therefore, he has landed in error of holding the appellant guilty of offence punishable under Section 307 of IPC when he had already acquitted him of offences punishable under Section 392, 394, 457, 458 of IPC and Section 3 and 27 of Indian Arms Act. Thus, this court has no hesitation in holding that the order of conviction and sentence passed against the appellant is not correct, proper and, therefore, illegal. This Court expresses its deep concern that this appeal came for hearing after the appellant had suffered the entire term of sentence and how he has been acquitted.