Bombay High Court
Shashibhushan Kumarsinh Rajput vs The State Of Maharashtra on 2 December, 2016
Bench: V.K. Tahilramani
3b. cri apeal 1408-11.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1408 OF 2011
Shashibhushan Kumarsinh Rajput
Age - 32 Years, Occ. : Watchman,
R/o. 15, Vitthal Nagar, Hadapsar,
Pune.
At present lodged in Nashik Road Central
Prison .. Appellant
(Org. Accused)
Versus
The State of Maharashtra
Through Hadapsar Police Station
(At the instance of Mrs. Chhaya Ankush
Kokare) .. Respondent
...................
Appearances
Mr. Abhaykumar Apte Advocate (appointed) for the Appellant
Mr. Arfan Sait APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
A.M. BADAR, JJ.
DATE : DECEMBER 2, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant - original
accused against the judgment and order dated 23.09.2011
passed by the learned Additional Sessions Judge, Pune in
Sessions Case No. 241 of 2007. By the said judgment and
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order, the learned Session Judge convicted the appellant for
the offence punishable under Section 302 of IPC and
sentenced him to suffer rigorous imprisonment for life and
fine of Rs. 500/-, in default R.I. for fifteen days.
2. The prosecution case briefly stated, is as under:
(a) Pune Urban Co-op Bank is situated on the first
floor of the building in which grocery shop in the
name of 'Golden Super Market' was situated.
Golden Super Market was run by PW 3 Iqbal. The
appellant was working as a watchman in the Pune
Urban Co-op. Bank. He used to be armed with a
rifle. On 29.11.2006, the bank was closed at
about 6.00 p.m. The appellant was on duty as a
watchman since 6.00 p.m.
(b) Deceased Ankush Kokare was the husband of PW
1 Chhaya who is the first informant in the present
case. The house of the deceased was situated
close to the bank. The deceased had a son by
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name Deepak and daughter by name Pooja.
Deepak was a young boy going to school.
(c) The incident occurred on 29.11.2006. The
deceased came home at about 8.00 p.m. as
usual. Thereafter, his wife gave him dinner. After
dinner, deceased Ankush left the home telling his
wife that he was going to purchase tobacco. At
that time, Deepak was playing on the road in front
of the house. Chhaya and her daughter Pooja
were in the house. Deepak came home shouting
that his father had sustained firearm injury.
Chhaya then ran towards the road. She saw her
husband lying on the road with a bullet injury on
his abdomen. She rushed her husband to Pooja
Hospital. The doctor informed them to take
Ankush to Sassoon Hospital. On the next day,
Ankush was operated in the hospital, however,
during the course of the treatment, he expired at
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6.00 p.m on 30.11.2006.
(d) Meanwhile, PW 1 Chhaya lodged F.I.R. Exh. 17.
The said F.I.R. was registered under Section 307
of IPC. After Ankush expired, the said offence was
converted into Section 302 of IPC. The dead body
of Ankush was sent for postmortem. After
completion of investigation, the charge sheet
came to be filed.
3. Charge came to be framed against the appellant under
Section 302 of IPC and Section 3 of the Arms Act. The
appellant pleaded not guilty to the said charge and claimed
to be tried. His defence was that of total denial and false
implication. After going through the evidence adduced in
this case, the learned Sessions Judge convicted and
sentenced the appellant as stated in paragraph 1 above,
hence, this appeal preferred by the appellant against his
conviction and sentence.
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4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned Advocates for the
parties, the judgment delivered by the learned Sessions
Judge and the evidence on record, for the reasons stated
below, we are of the opinion that the appellant fired a bullet
on Ankush which led to his death.
5. There is no eye witness to the incident and the case is
based only on circumstantial evidence. In order to sustain
the conviction, the prosecution has mainly relied on the
evidence of PW 3 Iqbal Ansari. Iqbal Ansari has stated that
he owned a grocery shop in the name of 'Golden Super
Market'. The shop was situated on the ground floor and he
was residing on the first floor of the building. The bank was
also situated in the very same building on the first floor.
Iqbal has stated that on 29.11.2006 at about 10.00 p.m.,
when he was about to close his shop, he heard sound of
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firing. The firing occurred on the road in front of his shop.
He immediately closed his shop. He saw people had
gathered on the road and Ankush Kokare was lying on the
road. Iqbal has stated that he was standing in front of his
shop. At that time, his wife Khairunnisa started shouting
from the first floor of the building. He, therefore, went to the
first floor. He saw the appellant who was the watchman of
the bank was making an attempt to enter into his house,
hence, his wife had raised alarm. Iqbal then brought the
appellant to the ground floor. Meanwhile, police came to the
spot. Iqbal then handed over the appellant to the police.
When Iqbal came back to the spot, he noticed that the
injured had already been taken to the hospital. Iqbal had
identified the appellant as the very same person whom he
had caught and who was holding rifle in his hand and was
trying to enter his house.
6. PW 2 Panch witness Shankar has stated that on
30.11.2016, he was called near Pune Urban Bank. The police
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seized a double bore rifle and four live cartridges from the
appellant. The police also seized a used cartridge which was
found on the ground. The rifle, empty cartridge and four live
cartridges were sealed and seized under panchnama Exh.
19.
7. The evidence of Investigating Officer PW 7 PI Gadale
shows that he sent the rifle, empty cartridge and live
cartridges to the Chemical Analyzer. The C.A. report in
relation to the examination of rifle, empty cartridge and live
cartridges is at Exh. 25. The report shows that the empty
was fired from the rifle which was seized from the appellant.
The examination of rifle shows that residue of fired
ammunition-nitrite was detected in the washing of the
barrels which showed that the rifle had been used for firing
prior to its receipt to the laboratory.
8. The medical evidence shows that the death of Ankush
was caused due to traumatic and hemorrhagic shock as a
result of firearm injuries. The postmortem report is at Exh.
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33. PW 6 Dr. Shinde has stated that the injuries are
sufficient to cause the death of a person in normal
circumstances and the injuries as mentioned in postmortem
notes can be caused by a rifle Article 1.
9. Thus, the evidence on record shows that the bullet fired
from the rifle Article 1 caused injuries to the deceased. The
said rifle was seized from the appellant. The appellant was
at the spot. His conduct as seen from the evidence of PW 3
Iqbal shows that the appellant was frightened and was trying
to enter into the house of PW 3 Iqbal. The evidence of PW 3
Iqbal shows that immediately after he heard the sound of
firing, he saw the appellant holding a rifle in his hand. The
chain of circumstances as proved by the prosecution is such
that it leads to the inescapable conclusion that it was the
appellant who fired at deceased Ankush and no other. It
may be stated that it was not the defence of the appellant
that somebody else snatched the rifle from him and fired at
the deceased. Looking to all these facts, we are of the
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opinion that the prosecution has proved beyond reasonable
doubt that the appellant fired at the deceased and caused
his death. Thus, we find no merit in the appeal. The appeal
is dismissed.
10. Office to communicate this order to the appellant who
is in Nashik Road Central Prison.
11. Fees to be paid to the appointed Advocate are
quantified at Rs. 5000/-.
[ A.M. BADAR, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
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