Bombay High Court
Shakil @ Golu Shakur Mewati vs The State Of Maharashtra on 5 October, 2012
Bench: T.V. Nalawade
Cri. Appeal Nos. 365, 366/12
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 365 OF 2012
1. Shakil @ Golu Shakur Mewati,
Age 22 years,
R/o. Maksi, Dist. Sadapur (M.P.)
2. Saru Rais Mohmad,
Age 19 years,
R/o. Sendhawa (M.P.) ....Appellants.
Versus
The State of Maharashtra
Through Erandol, Police Station,
Dist. Jalgaon. ....Respondent.
Mrs. Pradnya Deshmukh, Advocate for appellants (appointed).
Mr. N.B. Patil, APP for State.
WITH
CRIMINAL APPEAL NO. 366 OF 2012
Noor Mohmad Sher Mohmad
Age 34 years,
R/o. Raul, Indore,
Indore (M.P.) ....Appellant.
Versus
The State of Maharashtra
Through Erandol, Police Station,
Dist. Jalgaon. ....Respondent.
Mrs. Pradnya Deshmukh, Advocate for appellants (appointed).
Mr. N.B. Patil, APP for State.
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Cri. Appeal Nos. 365, 366/12
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CORAM : T. V. NALAWADE, J.
DATED : 5th October, 2012.
JUDGMENT :
1. Both the appeals are filed against the judgment and
order of Sessions Case No. 194/2009, which was pending in the
Court of Additional Sessions Judge, Jalgaon. The Sessions Court
has convicted and sentenced the appellants from both the
appeals for offences punishable under section 394 and 397 of
Indian Penal Code. Both the sides are heard. This Court has
perused the original record of the case.
2. In short, the facts leading to the institution of the
present proceedings can be stated as follows :-
The complainant Ashok Kamble works as a taxi driver.
The incident took place on 21.7.2009. On that day, the
complainant was returning from Dhule to Jalgaon in his taxi
bearing No. MH-19/AE-4409. When the taxi reached at Dhule
Parola Chaufula, accused No. 1, who was present there, gave
signal to stop the taxi. Ashok stopped the taxi. Accused No. 1
informed that he wanted to go to Jalgaon. After negotiations, the
fair was decided. Accused Nos. 2 and 3 were present near a pan
stall at this spot. Accused No. 1 called them and they boarded as
passengers in the taxi of Ashok. It was at about 10.30 a.m.
Cri. Appeal Nos. 365, 366/12
3. When the taxi crossed the distance of 10 to 15 k.m.,
one of the accused started complaining that he had a feeling of
vomitting. Ashok stopped the taxi, but the accused did not vomit
and so Ashok again started the taxi and started proceeding
towards Jalgaon. After crossing Patherkheda and when the taxi
was on highway, the same accused again started complaining
that he had a feeling of vomitting. When Ashok stopped the taxi,
this accused alighted from the taxi and rushed towards driver side
of the taxi and started making attempts to open the door on that
side. In the meantime, one of the accused who was sitting on the
back seat, hit something on the head of Ashok. A revolver was
also shown to Ashok. Ashok sustained bleeding injury and he
somehow came out of taxi. As soon as Ashok came out from the
taxi, the accused who had alighted from the taxi occupied driver's
seat and the three accused took the taxi towards Erandol. It was
at about 12.00 noon.
4. In the taxi car, there were articles of Ashok like mobile
handset having SIM card bearing No. 9850040912, the driving
licence along with the papers in respect of taxi, the spectacle of
Ashok and also the car tape. Ashok somehow took a bus and
went to Erandole Police. His report came to be recorded. Ashok
Cri. Appeal Nos. 365, 366/12
showed the spot from where his taxi was taken away by these
three accused. Ashok gave the description of all the three
accused in the F.I.R. On the basis of the report of Ashok, Crime at
C.R. No. 55/2009 came to be registered for offences under
sections 394 and 397 of I.P.C. at about 2.10. p.m. Ashok was
referred to Government Hospital.
5. There was no facility of electricity in the Government
Hospital and so X-ray could not be taken in respect of the injury
sustained to the head. Ashok went to private hospital, where X-ray
was taken. In the X-ray, one bullet was seen in the skull portion of
Ashok. Ashok then was admitted in the hospital of one Dr.
Bhangale. Operation was performed in this hospital and the bullet
came to be removed from the skull. This bullet was handed over
to police by Dr. Bhangale.
6. On 30.7.2009, on the basis of IMEI number of the
mobile handset, police collected information from mobile
company and located the position of the mobile handset. When
police went to the spot, they found one Jaiswal, employer of
accused No. 3. Jaiswal informed that the mobile handset was in
the use of accused No. 3, though the SIM card was in the name of
Jaiswal. Jaiswal told that accused No. 3 was present at a Dhaba,
Cri. Appeal Nos. 365, 366/12
which was situated in the vicinity and so police went there. Police
traced accused No. 3 and when in presence of panch witnesses,
his personal search was taken, the mobile handset of Ashok was
recovered from the person of accused. During interrogation,
accused No. 3 gave information against the accused Nos. 1 and 2.
Accused No. 3 took police to the house of accused No. 1 situated
at Indor, Madhya Pradesh. Accused No. 1 was present in the
house. When the search of his house was taken in presence of the
panch witnesses, one pistol with magazine came to be recovered
and they were found in the concealed condition. One taxi car, was
found in front of the house of accused No. 1. Though it was
bearing different number, there were papers of Ashok in the taxi
and so all these articles were seized in presence of the panch
witnesses. During investigation, accused No. 1 gave statement
under section 27 of the Evidence Act on 5.8.2009 and on the basis
of this statement, the car tape, which was removed from the taxi
of Ashok, came to be recovered from the house of accused No. 1
situated at Indore. It was also seized under the panchanama.
7. The bullet removed from the head of Ashok, the pistol
recovered from the house of accused No. 1 and the live cartridges
recovered from the house of accused No. 1 came to be sent to
ballistic department. The expert gave opinion that the bullet
Cri. Appeal Nos. 365, 366/12
removed from the head of Ashok was fired from the same pistol.
8. After arrest of all the three accused, test identification
parade (T.I. parade) was held through Tahsildar. The complainant
identified all the three accused in presence of panch witnesses in
T.I. parade. After completion of investigation, chargesheet came
to be filed for offences punishable under sections 394 and 397 of
I.P.C. For proving the offences, the prosecution examined 14
witnesses. The accused took the defence of total denial. In the
evidence, the complainant identified all the accused. The articles
were already handed over to the complainant. The Trial Court has
held that the prosecution evidence is sufficient to prove both the
offences.
9. In the appeal, the advocate of the appellants argued
on the evidence of test identification parade and the evidence of
recovery of various articles at the instance of accused Nos. 1 to 3.
It was submitted that the evidence regarding recovery of the
articles has no independent corroboration. Alternatively, it was
submitted that accused are entitled to a lenient view, as they
were not involved in the past in any other crime. The learned
A.P.P. supported the decision of the Trial Court and submitted that
in view of the minimum penalty provided for offence punishable
Cri. Appeal Nos. 365, 366/12
under section 397 of I.P.C., minimum penalty is given by the Trial
Court and there is no possibility of interference on any point in the
judgment and order of the Trial Court.
10. Ashok (PW 3) has given evidence on the incident. He
has given the particulars as to how and where all the three
accused boarded in his taxi and as to how they pretended him as
passengers for getting taxi. He has given evidence that on the
second occasion, when he stopped the taxi, one of the accused,
who had alighted from the taxi reached at the door from driver
side and other accused hit something on his head. It can be said
that Ashok did not realize that actually bullet was fired at his head
from backside and due to that he sustained bleeding injury. He
has given evidence that when he alighted from the taxi, the
accused took away his taxi towards Erandole and in the taxi there
were articles like mobile handset etc. He has identified all the
three accused in the Court. His evidence shows that the articles
recovered from the accused like mobile handset, car tape
recorder etc. were handed over to him by way of giving him
interim custody. The defence had no grievance regarding this
circumstance. The F.I.R. was given immediately and the crime was
registered at about 2.00 p.m. on the same day. The F.I.R. is
consistent with the evidence of Ashok. Ashok has given evidence
Cri. Appeal Nos. 365, 366/12
that T.I. parade was held and in the different identification
parades, he identified all the three accused.
11. For proving the record of T.I. parade, the prosecution
has examined panch witness Rohidas (PW 6) and Tahsildar
Amarsingh (PW 7). Their evidence and the record show that for
giving an opportunity to the complainant, T.I. parade was held
three times and on every occasion different persons were
selected by the Tahsildar. This record is duly proved as Exhs. 67,
70 and 71. This record is consistent with the evidence of
complainant, panch witnesses and Tahsildar. The evidence and
the record show that the guidelines given in the Criminal Manual
were duly followed. Nothing is brought on the record to create a
probability that prior to 10.8.2009 the accused were shown to
complainant or on that date just prior to the T.I. parade, there was
an opportunity to the complainant to see these accused
separately. Thus, the evidence of T.I. parade is consistent with the
evidence of Ashok. There was no reason for Ashok to falsely
implicate these three accused persons as they were not known to
him prior to the date of incident. He had sufficient opportunity to
observe the three accused as the incident took place in day time
and they were in his company for more than one and half hours.
There is the ring of truth in the evidence of Ashok and further,
Cri. Appeal Nos. 365, 366/12
there is corroboration of circumstances to the evidence of Ashok.
12. Dr. Manish (PW 9) took X-ray of the head of Ashok on
21.7.2009. He has given evidence that he found one bullet in the
skull, which had virtually penetrated in to the skull. The X-ray
report is proved as Exh. 82. Dr. Bhangale (PW 11) has given
evidence that the complainant was admitted in his hospital and
he removed the bullet from the head of the complainant. It
appears that by mistake Dr. Bhangale has stated that the
operation was performed on 31.7.2009, when as per the record,
the complainant was indoor patient from 21 to 23 September
2009. The certificate is duly proved in the evidence of Dr.
Bhangale as Exh. 92. This record and the oral evidence of Dr.
Bhangale gives necessary corroboration to the evidence of Ashok.
13. A.P.I. Lagad (PW 14) made some investigation of the
case. He has given evidence that as per the directions of the
Superior Officer, he collected the record from Mobile Company in
respect of mobile of Ashok on 30.7.2009. He has deposed that on
the basis of this information, he located the mobile handset of
Ashok and then he approached Jaiswal as the SIM card in the
name of Jaiswal was in this mobile handset. He has deposed that
Jaiswal informed that the mobile handset was in the use of
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accused No. 3, though his SIM card was used in the mobile
handset. He has deposed that on the basis of information given by
Jaiswal, he went to a Dhaba, where accused No. 3 was present. He
has deposed that the personal search of accused No. 3 was taken
in presence of panch witness and mobile handset of Ashok was
recovered from the person of accused No. 3. The panchanama of
seizure of mobile handset is proved as Exh. 120.
14.
Lagad (PW 14) has given evidence that from accused
No. 3 he collected the information as against accused Nos. 1 and
2. He has deposed that accused No. 3 took him and panch
witnesses to the house of accused No. 1. He has deposed that
accused No. 1 was present in his house from Indore and the
search of his house was taken. He has deposed that one country
made pistol and one magazine were recovered from his house. He
has deposed that one car, taxi bearing No. MP-09/4124 was found
in front of the house of accused No. 1, but in this car, there was
the record of Ashok, the complainant in respect of the car. He has
given evidence that as the car belonged to Ashok and as the
aforesaid articles were recovered from the house of accused No.
1, they were taken over under the panchanama which is at Exh.
121. He has deposed that when the car was taken over, he
noticed that the car tape was not present at its place. The articles
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like country made pistol, magazine, bullet removed from the head
are identified by Lagad. Though there is no evidence of panch
witness on the recovery of pistol from the house of accused No. 1,
this Court sees no reason to take doubt about the evidence of
Lagad. There is the ring of truth in the evidence of Lagad and
further, there is other evidence giving corroboration to the
evidence of Lagad.
15.
Dr. Manish (PW 9) has given evidence that he took X-
ray of the skull of the complainant. He found that there was bullet
in the skull. The certificate of this Doctor is proved as Exh. 82. Dr.
Bhangale (PW 11) has given evidence that in his hospital,
operation was performed and bullet was removed from the head
of Ashok. He has given evidence that he handed over the bullet to
police. The panch witness Shashikant Rajshirke has given
evidence that in his presence, police took over the bullet from Dr.
Bhangale. The seizure panchanama is proved as Exh. 35. Carrier
Constable Sidharth Jadhav (PW 10) has given evidence that he
carried the pistol, the bullet and the magazine to Kalina
laboratory. The Ballastic Expert Munj (PW 12) has given evidence
that the bullet, which was used, was found to be fired from the
pistol handed over to them along with the bullet. The record
regarding examination of these articles in the laboratory is proved
Cri. Appeal Nos. 365, 366/12
as Exhs. 84 and 85 and also 98 to 100. In view of this record and
the evidence of the witnesses, this Court holds that it is not
possible to take doubt about the evidence. This evidence gives
corroboration to the evidence of complainant and also to the
evidence of Lagad.
16. Lalsing (PW 8), the Head Constable, has given
evidence that accused No. 1 gave statement to him on 5.8.2009
and then accused took him and panch witnesses to the house
from Indore. He has given evidence that from the house, accused
No. 1 produced a car tape recorder and it was seized under the
panchanama. Both the memorandum of statement and seizure
panchanama are duly proved in the evidence of panch witness
Bhagwan Patil (PW 4) and Lalsing (PW 8) and they are at Exhs. 45
and 46. This evidence gives further corroboration to the version of
complainant.
17. It is already observed that Ashok had no reason to
falsely implicate the accused in the case. All the articles of Ashok
are recovered at least from accused Nos. 1 and 3. Accused No. 2
is identified in the Court by Ashok. All the accused were identified
in T.I. parade also. A bullet injury was found on the head of Ashok
on the backside and the said bullet was fired by using pistol
Cri. Appeal Nos. 365, 366/12
recovered from accused No. 1. In view of all these circumstances,
this Court holds that there is sufficient evidence for proving of
both the offences against all the three accused. Thus, the Trial
Court has not committed any error in convicting and sentencing
the accused persons for both the offences.
18. Section 397 of I.P.C. shows that the minimum penalty
is provided for this offence. In the present case fire arm was used.
Injury was caused to head of Ashok but he was fortunate to
survive. As the minimum penalty is provided and no discretion is
left with the Court in section 397 of I.P.C., there is no question of
giving less than the minimum penalty in this case. The
imprisonment period also cannot be reduced.
19. In the result, the appeal stands dismissed.
20. The copy of the judgment is to be supplied to all the
three appellants through the Jail Superintendent. It is to be
informed to them that this decision can be challenged in the
Supreme Court and for that also they can get legal aid.
21. Fees of the advocate appointed for the appellants is
quantified as Rs. 5000/- (Rupees five thousand) and this is the
Cri. Appeal Nos. 365, 366/12
fees for both the appeals together.
[ T. V. NALAWADE, J. ]
ssc/
