Sarwarlaram Bakruddin Khalappa ... vs The State Of Maharashtra
2012 Latest Caselaw 25 Bom

                                                         Apeal 882-05.odt

    Anand

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION




                                                                           
                       CRIMINAL APPEAL NO.882 OF 2005




                                                   
            Sarwarlaram Bakridankhalipa Shaikh                       Appellant
            Age:37 yrs
            Resident of Abdul Masjid Chawl,
            Room No.1, Ketkipada, Dahisar(E)
            Mumbai - 400 068.




                                                  
                        V/s.

            The State of Maharashtra                                 Respondent




                                         
            Mr.V.V.Mane, Advocate, for the Appellant
                            
            Mrs.G.P.Mulyekar, APP, for the Respondent - State

                              CORAM    :      R.C.CHAVAN, J.

                              DATE     :      28TH SEPTEMBER, 2012
              

            ORAL JUDGMENT
           



            .          This      appeal       is     directed               against

appellant's conviction by the learned Additional

Sessions Judge, Sewree, Mumbai for the offence

punishable under Section 307 read with Section

34 of the Indian Penal Code and sentence of

simple imprisonment for three years with a fine

of Rs.1000/- or in default simple imprisonment

for six months on conclusion of joint trial in

Apeal 882-05.odt

Session Case Nos.465 of 1993 and 432 of 1995

before him.

2. Facts which are material for deciding

this appeal are as under :-

The first informant, Rajwansh Singh had

some dispute with the original accused No.1

Awadhnarayan Vishwanath Upadhyay. On 31st

October, 1991 at about 11:45 p.m. when the first

informant

Rajwansh Singh had come to R.J.Hotel

at Dahisar check naka and was having a word with

PW-2 Dinesh Rambhujarak Pandey and PW-5 Sunil

Singh Kishan Singh, the appellant along with an

unknown person were noticed by them. They felt

that something fell near the feet of Rajwansh

Singh which injured Rajwansh Singh as well as

Dinesh. It was alleged that the appellant was

armed with revolver and fired two rounds towards

Rajwansh Singh. The appellant and accomplice

ran away. Police reached the spot immediately,

took injured person to hospital, performed

panchanama of the spot, arrested the appellant

Apeal 882-05.odt

on 1st November, 1991, seized such incriminating

articles as could be found and sent charge sheet

to the Court of the learned Metropolitan

Magistrate, 26th Court, Borivali, Mumbai.

Accused No.1 Sarovar Hasanali Khan in Session

Case No.432 of 1995, who was absconding was

arrested on 19th June, 1994 and was charge sheeted

separately by filing Session Case No.432 of 1995.

He seems to have again absconded and his case is

now separated.

ig Said Sarovar Hasanali Khan was

possibly the person, who had thrown same article

at the feet of Rajwansh Singh and others.

3. Upon commitment of the case by the

learned Metropolitan Magistrate to the Court of

Sessions, the learned Additional Sessions Judge

to whom the case was made over, charged the

appellant and co-accused Awadhnarayan Vishwanath

Upadhyay and Lallan Sankathaprasad Upadhyay for

the offences punishable under Section 307 read

with Sections 120B and 34 of the Indian Penal

Code and Sections 4, 5 read with Section 6,

Apeal 882-05.odt

9B(b) read with Section 12 of the Explosive

Substances Act, 1908. Since accused persons

pleaded not guilty, they were put on trial at

which the prosecution examined in all ten

witnesses in its attempt to bring home guilt of

the accused persons. After considering the

prosecution evidence in the light of defence of

false implication, the learned Judge convicted

the appellant and sentenced him as

aforementioned while he acquitted the other two

accused persons of the offences charged.

Aggrieved thereby, the appellant is before this

Court.

4. I have heard the learned counsel for the

appellant the learned Additional Public

Prosecutor for the respondent - State. With the

help of both the learned counsel I have gone

through the evidence on record. PW-1 Rajwansh

Jaganarayan Singh and PW-2 Dinesh are the

persons, who had suffered injuries in the

incident. PW-5 Sunil Singh Kishan Singh was

Apeal 882-05.odt

also present and had witnessed the incident.

The injuries sustained by the witnesses were

treated by PW-7 Dr. Ramesh Kantilal Talati, who

proved his Medical Certificates at Exhibit

Nos.30 to 33. The injuries observed were

multiple abrasion. The Medical Officer was

candid in admitting that it was his first

occasion to examine a person injured in a bomb

blast but it is not clear as to how he came to

the conclusion that abrasions noted by him were

the result of a bomb blast. However, this

need not detain further inquiry into complicity

of the appellant, since it is not the appellant,

who is alleged to have thrown bombs at the

witnesses. Even according to them, it was the

person, who accompanied the appellant, who had

thrown some article at their feet which

exploded and injured them. The appellant is

alleged to have fired two rounds from his

revolver or fire arm. PW-6 Head Constable,

Maruti Kisanrao Ghule was on duty at police

outpost which is 20 feet from the spot and

Apeal 882-05.odt

rushed immediately. PW-9 Senior Police

Inspector, Namdeo Hari Bagul conducted

investigation in parts. PW-10 Assistant Police

Inspector, Laxman Bhausaheb Kale registered

report. PW-8 Major Vasant Laxman Jadhav of Bomb

Squad furnished his opinion on the basis of

material submitted to him to the effect that

there was explosion of bombs at the spot.

                                   
     5.         Though
                      ig     police       rushed           to       the        spot

immediately, in course of the panchanama of the

spot, there is nothing to show that any round

had been fired from any revolver. No such thing

could be noticed at the spot. No such article

or fire arm was seized in course of

investigation though the police arrested the

appellant on the very next day of the incident.

At the cost of repetition, it may have to be

observed that it was not the appellant, who had

thrown any bomb at the prosecution witnesses.

The only role attributed to the appellant is

firing from revolver for which there is

Apeal 882-05.odt

absolutely no evidence. Empties of the rounds

fired should have been found at the spot. In

view of this, though the learned APP tried to

support the Judgment, there is nothing to

indicate complicity of the appellant in an

offence to commit murder of Rajwansh Singh.

Since the appellant had no personal enmity with

Rajwansh Singh, there was absolutely no reason

why he should fire at Rajwansh Singh.

6. The appeal is, therefore, allowed.

Conviction of the appellant for the offence

punishable under Section 307 read with Section

34 of the Indian Penal Code and sentence of

simple imprisonment for three years with a fine

of Rs.1000/- or in default simple imprisonment

for six months is set aside. He is acquitted of

the charges. He shall be set at liberty, if not

wanted in any case.

(R.C.CHAVAN, J.)