Bombay High Court
Sachin Pandurang Ghortale vs The State Of Maharashtra on 25 February, 2016
Bench: M.T. Joshi
( 1 ) criappeal252-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.252 OF 2015
Sachin s/o. Pandurang Ghortale,
Age 27 years, Occu. Labour,
r/o. Newasa Khurd, Tq. Newasa,
Dist. Ahmednagar ..Appellant
Versus
The State of Maharashtra ..Respondent
--
Mr.P.S.Koshti, advocate for appellant
Mr.R.B.Bagul, APP for respondent - State
--
CORAM : M.T. JOSHI, J.
RESERVED ON : JANUARY 28, 2016
PRONOUNCED ON : FEBRUARY 25, 2016
JUDGMENT :
Heard both sides.
2] The appellant/accused has been convicted by
learned District Judge-2 and Addl. Sessions Judge,
Shrirampur in Sessions Case No.49 of 2012 vide
judgment and order dated 22nd January, 2014 for
the offences punishable under Section 304 Part II
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and 506 of Indian Penal Code; and Section 3(25) of
the Arms Act.
. He was directed to suffer rigorous
imprisonment for seven years for the offence
punishable under Section 304 Part II of Indian
Penal Code. No separate sentence was recorded for
the other offences. Hence, the present appeal.
3] The appellant along with other four accused
faced trial for the offences punishable under
Section 120-B, 384, 302, 506 of Indian Penal Code;
Section 3(25) of Arms Act; and Section 37(1)(3)
read with 135 of the Bombay Police Act. The other
accused, however, were acquitted and the appellant
came to be convicted, as detailed supra.
4] The prosecution case, in short, is as under :-
. That on 15th October, 2011, the complainant PW
1 - Kamlesh Jagtap had received a phone call from
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mobile number 9421401102 to his shop land-line
number 241500 at Newasa Khurd. The unknown caller
had made a demand of Rs.25,000/- and threatened
that in case, the demand is not fulfilled, the
complainant would be killed by bullets. He also
told that his man would be coming to the shop of
the complainant for collection of the money. The
complainant gathered that from the similar mobile
number, phone calls to various shop keepers in the
area were made with similar demand and threats and
in that connection, a complaint was filed at
Newasa Police Station by the father of the
complainant. The other merchants had also filed
similar complaints.
5] In the situation, on 24th October, 2011 at
about 7:00 p.m. while the complainant along with
PW 4 - Shivaji More and one more servant were
watching television with deceased Shahnawazkhan
Pathan i.e. neighboring shop owner, one youth came
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to the shop of the complainant. He had masked his
face with a handkerchief. He was holding a
metallic colour pistol. At that time, he made
demand of Rs.25,000/- to the complainant. The
complainant sought two minutes' time from the said
youth. The pistol was pointed towards the
complainant. In the circumstances, the complainant
rushed into godown of the shop and put the shutter
down. The youth fired three bullets in the
complainant's direction, however, due to the
shutter, he was not injured. After certain period,
he came out and found that said Shahnawazkhan was
injured in his stomach as the bullet caused
grazing injury. Shahnawazkhan was taken to the
hospital. Accordingly, the complaint came to be
filed.
6] In the complaint, the assailant was described
as a man of little height and of blackish
complexion, around 23 to 24 years old, wearing
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black and white strip shirt and tight black
trouser.
. PW 12 - Police Inspector - Kailas Gawade of
Newasa Police Station had registered the crime.
He went to the spot of occurrence and in presence
of the panch witness, inter alia seized the empty
cartridges and two small boxes. He also seized a
wooden bed which was damaged due to the bullet.
. PW 13 - SDPO Ganesh Rathod has carried further
investigation. He recorded statements of various
witnesses. The Local Crime Branch ultimately
apprehended the appellant/accused. He, therefore,
arrested him. He seized clothes of the injured. He
also prepared seizure panchanama of bullet due to
which, said Shahnawazkhan was injured.
7] While in custody, the present appellant made a
statement leading to recovery of the pistol and
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bullets from a gunny bag from the rented house of
the appellant. Lateron, the appellant also made
statement leading to the recovery of a SIM card
and newspaper cutting from a pit nearby a railway
bridge near Shrirampur.
. PW 14 - Mukund Aghav, Police Inspector of
Newasa Police Station, carried further
investigation. He has seized the clothes of the
appellant and recorded statements of some of the
witnesses. The ballistic report was called and
ultimately, the charge sheet came to be filed.
8] Before the learned Additional Sessions Judge,
in all 14 witnesses were examined out of which, PW
1 - Kamlesh, the complainant, PW 3 - Abhay,
another shop owner and PW 4 - Shivaji, employee of
the complainant, were examined as eye witnesses.
PW 5 - Dr.Ajay Taware has conducted post mortem
examination upon death of injured - Shahnawazkhan
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on 6th November, 2011. Rest of the witnesses are
either the panch witnesses or the Investigating
Officer. PW 11 - Gorakshnath Gugarkar has recorded
statements of some of the witnesses (not examined
by the prosecution) under the provisions of
Section 164 of the Code of Criminal Procedure.
9]
The defence of the present appellant was of
total denial. According to him, he was falsely
implicated in the case. The learned Additional
Sessions Judge, though found that the case of
conspiracy was not proved, he came to the
conclusion that the prosecution has proved beyond
the reasonable doubt, that the present appellant
intended to cause injuries of such a nature that
those injuries were likely to cause death and
therefore, the conviction and sentence, as
detailed supra, came to be recorded against the
appellant. Hence, the present appeal.
( 8 ) criappeal252-15.odt
10] Mr.P.S.Koshti, learned counsel for the
appellant submitted before me that the prosecution
case itself is that the assailant was masked and
as such, none of the eye witnesses, could have
seen his face. Not only this, PW 4 - Shivaji has
deposed that the father of the complainant had
told him about a boy (the appellant). He further
submitted that there was no test identification
parade. Not only the panchnamas were concocted,
but the crucial fact of seizure of pistol and
cartridges were not proved, as none of the seizure
panch witnesses was examined by the prosecution
and only the Investigation Officer has deposed
about the same. He therefore submitted that the
learned Additional Sessions Judge has wrongly
convicted the appellant.
11] On the other hand, learned A.P.P. for the
respondent-State submitted that the appellant was
identified by the eye witnesses from the features
( 9 ) criappeal252-15.odt
which were already noted by those witnesses and
recorded in the complaint. The seizure of SIM card
at the behest of the appellant was clearly proved.
The call details record of the said SIM produced
by the prosecution would clearly prove that calls
were made to the complainant and other merchants
from the same SIM card. Further, the
Investigating Officer has proved seizure of the
pistol and the ballistic report would show that
the bullets which hit the deceased were fired
through the said pistol. In the circumstances, he
submitted that no fault can be found in the
reasons forwarded by the learned Additional
Sessions Judge.
12] On the basis of this material, following
points arise for my determination:-
(I) Whether the prosecution has proved that
on 24th October, 2011 at village Newasa
( 10 ) criappeal252-15.odt
Khurd, present appellant had intentionally
caused injuries to the deceased of such a
nature which are likely to cause death ?
(II) Whether the prosecution has
further proved that on the given date, time
and place, the present appellant had caused
criminal intimidation to the complainant ?
(III)
Whether the prosecution has
further proved that on the given date, time
and place, the appellant was possessing a
dangerous arm without any pass or permit ?
. My findings to each of the point are in the
affirmative. The appeal is, therefore, dismissed
for the reasons to follow.
R E A S O N S
13] The deposition of PW 1 - Kamlesh, PW 3 - Abhay
and PW 4 - Shivaji would show that a youth with a
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masked face had barged into the shop of the
complainant on 24th October, 2011. The evidence of
the complainant would additionally show that on
15th October, 2011, he had received threats on the
land-line phone from the mobile number referred
above. The complainant has further identified the
cloths placed before him which, according to him,
were on the person of the appellant at the time of
the occurrence. The complainant has particularly
identified the trouser and shirt at Articles "A"
and "B".
14] PW 7 - Yogesh Jadhav has deposed that the
clothes of the appellant were seized in his
presence and in presence of another panch witness
by the Investigating Officer. Accordingly the
panchanama was prepared and he has signed over the
same. He proved the same at Exhibit-83. During the
cross-examination, he admitted that during the
period of incident, he was employee of the
( 12 ) criappeal252-15.odt
complainant. He further deposed that he signed the
panchanama as per the instructions of his employer
i.e. the complainant, however, the articles, in
fact, were shown to him. He further deposed that
he had signed the panchnama which was already
written by the police. The evidence of this
witness, thus, would show that he is innocent and
straight-forward.
. Therefore, merely because this witness is an
employee of the complainant and that the police
has obtained his signature on the prepared
panchanama, there is nothing to disbelieve. In
fact, the appellant was not known to the
complainant previous to the incident. He had no
motive to implicate the appellant falsely either
by himself or through his employee i.e. PW 7 -
Yogesh Jadhav.
( 13 ) criappeal252-15.odt
. On the basis of the identification of the
clothes, the complainant had identified the
appellant.
15] PW 6 - Chandragupta Patil deposed that on 29 th
October, 2011, at about 2.00 p.m. the present
appellant while in custody of the police, made a
statement that he was ready to discover the SIM
card, a mobile phone and some newspaper cuttings.
His statement was recorded in his presence and in
presence of other witnesses (Panchnama-Exhibit-
81). Thereafter, the appellant led all of them to
Shrirampur. Near a railway bridge, he went under
a Neem tree and by digging earth, pointed a SIM
card and paper cuttings. He identified the SIM
card and the newspaper cuttings.
. The call details record placed below
Exhibit-118 would show that from the same SIM
Card, the phone calls, as detailed in the
complaint, were made.
( 14 ) criappeal252-15.odt
16] The learned counsel for the appellant
submitted that the SIM Card was allegedly seized
from an open place and the same was not admittedly
in the name of the appellant, but in the name of
one Vishwanath.
.
It is to be noted that the SIM card was seized
by digging a pit on the statement of the appellant
and it has been proved that the present appellant
had led the police and the panch witnesses to that
place. In the circumstances, it cannot be said
that the SIM card was seized from an open place
and that the appellant was not concerned with the
said SIM card.
17] It is true that the prosecution has failed to
examine any of the witnesses regarding seizure of
the pistol or cartridges at the best of the
appellant. It was a crucial evidence. The
( 15 ) criappeal252-15.odt
Investigating Officer has deposed about the same.
It appears that the Assistant Public Prosecutor in
the trial Court Shri. Walte was negligent in this
regard.
. The facts on record, however, would show that
the complainant has identified the clothes seized
from the person of the appellant as those of the
assailant.
. Further, there is a reliable proof that the
present appellant has made statement leading to
recovery of the SIM card, which ultimately proved
to have been used in issuing threat calls to the
complainant and other merchants. In that view of
the matter, it has been proved beyond the
reasonable doubt, that the present appellant is
the author of the injuries received by deceased
Shahnawazkhan.
( 16 ) criappeal252-15.odt
18] PW 5 - Dr.Ajay Taware has conducted post
mortem examination on the dead body of the
deceased on 6th November, 2011. The deceased was
injured on 24th October, 2011. The prosecution did
not place or prove the examination papers, which
would throw light, as to what injuries were
received by the deceased as post mortem
examination note is natural regarding therapeutic
injuries seen by the Medical Officer. The Medical
Officer has noted following injuries :-
1. Incised stitched wound on Center of
abdomen 19 cms vertical 16 stitches
seen (therapeutic)
2. A whole 2 x 1 cm seen at right iliac
region (therapeutic) region.
3. A Hole 3 x 1 cm seen at left iliac
region therapeutic.
4. A stitched wound 1 x 1 cm incised
over anterior axillary line 10 cm
above right anterior superior iliac
spine. (?fireram) injury (near right side
of stomach).
5. Abrasion 0.5 x 0.5 cm at right
forearm ventrally blackish.
( 17 ) criappeal252-15.odt
6. Abrasion 3 x 2 cms blackish over left
elbow posterior.
He, however, was sure that the death was caused due
to a fire-arm injury mentioned at Sr. No.4.
19] The statements of the eye witnesses coupled
with the statement of PW 5 - Dr.Ajay Taware leave
no room for doubt that the deceased had suffered
firearm injuries, which has ultimately caused the
death. Thus, the prosecution has proved beyond
reasonable doubt that the appellant committed the
offences.
20] Mr.Koshti, learned counsel for the appellant
has relied upon the ratio laid down in the case of
Kanan Vs. State of Kerala, 1979 CJ(SC)210 wherein,
inter alia, finding that there was no test
identification parade, benefit of doubt was
extended to the accused. In the present case,
however, we have different set of facts.
( 18 ) criappeal252-15.odt
21] In the circumstances, present appeal deserves
to be dismissed.
22] Hence, the following order.
. The Criminal Appeal is hereby dismissed.
ig Sd/-
[M.T. JOSHI, J.]
kbp
