Bombay High Court
Shankar S/O Bhausaheb Walke vs The State Of Maharashtra on 23 June, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 214 OF 2015
Shankar s/o Bhausaheb Walke,
Age : 30 years, Occu : Agriculture,
R/o. Village Ukkhalgaon,
Taluka Shrigonda,
District Ahmednagar.
[At present the Appellant is in
Ahmednagar District Prison,
Ahmednagar, Taluka and District
Ahmednagar] ... Appellant
(Orig. Accused No.1)
Versus
The State of Maharashtra,
through the Sub Divisional Police Officer,
Karjat Division, Taluka Karjat,
District Ahmednagar.
[Notice to the Respondent to be served
through the Public Prosecutor,
High Court of Bombay, Bench at Aurangabad] ... Respondent
.....
Advocate for the appellant : Mr. Govind L. Kulkarni h/f Mr. Rajendra S.
Deshmukh
AGP for respondent/State : Mrs. P. V. Diggikar
.....
WITH
CRIMINAL APPEAL NO. 250 OF 2015
Ramdas s/o Ananta Bhosale,
Age 46 years, Occu. Agriculture,
R/o Loni Vyankanath, Taluka Shrigonda,
District Ahmednagar. ... Appellant
Versus
1. Shankar s/o Bhausaheb Walke,
Age 29 years, Occu. Agriculture,
2. Sharad s/o Bhausaheb Walke,
Age 28 years, Occu. Agriculture,
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Both R/o Ukkhalgaon, Taluka Shrigonda,
District Ahmednagar.
3. The State of Maharashtra
[Copy to be served on Public
Prosecutor, High Court of
Judicature of Bombay, Bench
at Aurangabad] ... Respondents
.....
Advocate for the appellant : Mr. Anil M. Gaikwad
AGP for respondent No.3 : Mrs. P. V. Diggikar
.....
ig CORAM : A. V. NIRGUDE AND
V. K. JADHAV, JJ.
DATE : 23rd JUNE, 2016
ORAL JUDGMENT :- (PER A.V. NIRGUDE, J.)
1. This appeal challenges the judgment and order dated
30.1.2015 passed by the learned Additional Sessions Judge,
Ahmednagar in Sessions Case No. 271 of 2013 thereby convicting
the appellant for the offence punishable under Section 307 of I.P.C.
And to suffer R.I. for 10 years and to pay fine of Rs.5000/- with
default clause.
The appellant was acquitted of the offence publishable under
section 3 (2) (v) of Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act 1989 and under Section 3/25 of the
Arms Act.
2. The appellant and co-accused Sharad were tried in the said
sessions Case for the offences punishable under section 307 r.w. 34
of I.P.C. and Section section 3 (2) (v) of Scheduled Caste and
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Scheduled Tribes (Prevention of Atrocities) Act 1989 and under
Section 3/25 of the Arms Act.
3. It was alleged that on 2.5.2013, the accused took Ramdas to
his agricultural field, where both of them assaulted him. The accused
No.1 then took out a revolver and fired one shot towards Ramdas
which caused injury to his abdomen. Ramdas was taken to the
hospital and was operated. The bullet was found in his abdomen.
Rather belatedly a complaint was lodged.
4. At the trial stage, the prosecution examined in all 8 witnesses.
Out of them, two witnesses are important. One is complainant
Ramdas and another is his wife Savita - P.W.3. Both supported the
prosecution case. They stated that on 2.5.2013 they went to meet
accused No.1 at his village Ukkhalgaon for recovery of old dues.
They went to agriculture field of accused No.1. Accused No.1, on
reaching agriculture field, made a phone call to his brother Sharad -
accused No.2 and asked him to bring the amount of Rs.50,000/-.
Accused No.2 Sharad then came there. Accused No.1 then asked
the complainant Ramdas as to whether he had brought diary
(probably containing the account) with him. Ramdas answered in
affirmative and handed over the diary to accused No.1. After going
through the diary, accused No.1 slapped Ramdas, due to which
Ramdas fell down. Accused No.2 pushed Ramdas further on the
ground. Accused No.2 also caught hold of Ramdas's feet.
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Thereafter, accused No.1 took out revolver and fired a bullet towards
the left side of Ramdas's chest. Ramdas got injured and fell down.
His wife came near him, saw the wound and then made phone call to
his son Shrirang. His son Shrirang and nephew came there. They
took Ramdas to the hospital of Dr. Lad at Kashti. Ramdas was
referred to Dr. Hole at Shrigonda and thereafter, was taken to KEM
Hospital, at Pune, where the bullet was removed from the abdomen.
While Ramdas was in KEM Hospital, police came there and recorded
his statement. Ramdas asserted that he was not in proper
consciousness when the police recorded his statement in KEM
hospital at Pune. He stated that after recovery from illness he went
to Belwandi police station and lodged a report on 9.6.2013 (Exh. 29).
5. The next important witness is Dr. Vinod Naik, Consulting
Surgeon, KEM Hospital, Pune. He stated that on 03 rd May,2013, he
and one more doctor, performed surgery for removal of foreign body
i.e. bullet from the abdomen of P.W.1 Ramdas. Besides giving the
detailed report about the injury etc., this witness, in cross-
examination admitted that Ramdas was quite conscious after the
incident. His blood pressure was normal. Even after surgery, he
stated that Ramdas was stable.
6. The prosecution places reliance on letter dated 3.5.2013
signed by police head constable, Samarth police station, Pune and
addressed to Police Inspector, Shrigonda police station. In this letter,
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it was intimated to the police inspector of Shrigonda police station
that since the incident took place within the local limits of his police
station he should take further action. Unfortunately, this letter though
written on 3.5.2013, was dispatched on 9.5.2013. It reached to
Belwandi police station on 18.5.2013, within whose local limits the
incident took place. The station diary entry was taken to that effect
but unfortunately no further action was taken by the police of
Belwandi police station. Nonetheless, this document clearly establish
that the Police Constable of Samarth Police Station, Pune had
recorded statement of PW-1 while he was in KEM Hospital at Pune.
The forensic expert recorded his testimony. He opined in his report
which is at Exh.64 that the pallet recovered from the abdomen of
Ramdas was a 7.65 mm Pistol bullet having certain mark. He also
opined that it could have been fired from a weapon having smooth
bored barrel.
7. Based on primarily this material the impugned judgment is
based. We have find out whether the prosecution proved its case?
Our answer is in negative.
8. We found that the the prosecution case suffer from inordinate
delay in lodging the complaint:- It is admitted fact that Ramdas and
his wife did not lodge any complaint while Ramdas was taken to the
hospital at Kashti and thereafter at other places. Even while the
complainant was taking treatment at KEM hospital, Pune the
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complainant did not take steps for lodging the complaint. No
explanation is given as to why lodging of the complaint got delayed
for more than one month though the incident and the injury was quite
serious. In the cross examination, Ramdas admitted that while he
was in KEM hospital, the police had come to record his statement.
They were from Samarth police station, Pune. They even recorded
certain statements.
9. The testimony of Dr. Vinod Naik would on the other hand
clearly established that Ramdas was not unable to make statement
while he was in KEM Hospital or even prior thereto.
10. The question we asked across the bar during the argument
was: What had happened to the statement which was recorded in
Samarth Police Station, Pune? We perused the original record and
could locate the original statement of Ramdas recorded by Police
Constable of Samarth Police Station, Pune on 2 nd May, 2013. We
are aware that this document was not exhibited in the lower court,
but we have no hesitation in exhibiting it now because of the
following reasons: About this statement, Ramdas has given
admission in his cross-examination. This document gets further
support from the letter Exh.69, which was sent by Police Head
Constable of Samarth Police Station, Pune. This statement was part
of the charge sheet. During cross-examination of prosecution witness
No.1 Ramdas, the cross-examiner could have easily shown this
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statement to Ramdas who could have admitted his thumb mark on it.
It seems that the cross-examiner went up to asking Ramdas as to
whether his statement was recorded while he was in K.E.M. Hospital
when the answer came in affirmative. The next question in the
cross-examination could have been showing the document to the
witness. Once such document was shown, the Court would have
exhibited the same. Besides, this document could have been proved
through the statement of prosecution witness Dhiraj Patil, the I.O. In
the cross-examination, this witness has admitted that he had seen
report of Samarth Police Station and the letter of Samarth Police
Station addressed to Shrigonda Police Station along with statement
of complainant. The cross-examiner could have easily asked this
witness as to whether the statement, which we discussed above, was
the same. This witness could not have denied its existence.
Besides, the prosecution does not deny the existence of this
document or the incident which had occurred between Ramdas and
Police Head Constable of Samarth Police Station, Pune.
11. While perusing the original record of the case we located the
report of Police Head Constable Mr. Shirke, attached to Samarth
Police Station who apparently recorded the statement of Ramdas by
visiting him in the hospital. The same also deserves to be read in
evidence because it is not a disputed document and it is also
relevant. It is clear that the statement of Ramdas and the report of
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Police Head Constable Shirke, together, were sent to Samarth Police
Station, Pune, and these two documents were further referred to
Shrigonda Police Station by entry No. 00 of 2013.
12. As said above, the Investigation Officer Dhiraj Patil admitted
having seen these two documents. In view of this, we mark these two
documents as Exh.73-A and 73-B.
13. Now, let us examine the contents of document Exh.73-B.
Ramdas, in his statement, stated that in order to recover old dues, he
went to Ukkhalgaon and met accused No.1, who agreed to settle his
dues. Accused No.1 then was accompanied by three more unknown
persons. Ramdas stated that thereafter, the unknown persons
assaulted him and pushed him, due to which, he fell down. Amongst
these three unknown persons, someone fired a bullet at him and
caused injury.
14. The prosecution case gets weakened because of inaction on
the part of Ramdas as he did not lodge complaint in reasonable time
disclosing as to who the perpetrators were. The disclosure made by
him in his statement recorded at Pune further weakened the case of
prosecution. We are therefore, not inclined to believe the prosecution
case that it was accused No.1 who fired the bullet.
15. There is one more serious lapse on the part of investigating
officer in this case. As said above, there is a clear allegation that a
bullet was shot utilizing a fire arm. Even the assailant's name was
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mentioned in the so called F.I.R.. Accused Nos. 1 and 2 were
arrested and yet the fire arm was not recovered during the
investigation. Unless the fire arm and the pallet recovered from the
abdomen of the victim were sent for ballistic examination by an
expert, the Court could not have found as to whether the fragment of
pallet found in the abdomen was actually fired from the fire arm
which belonged to or which was recovered from the assailant. The
investigating officer did not recover the fire arm from which this bullet
was fired.
16. The prosecution failed to prove its case. The accused
deserves benefit of doubt. Hence, we proceed to pass the following
order:
ORDER
I. Criminal Appeal No. 214 of 2015 is hereby allowed.
II. The judgment and order dated 30.01.2015 passed by the
learned Additional Sessions Judge, Ahmednagar in
Sessions Case No.271 of 2013 is hereby quashed and set
aside to the extent of accused No.1 Shankar Bhausaheb
Walke.
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III. The appellant/original accused No. 1 Shankar Bhausaheb
Walke is acquitted of the offence punishable under Section
307 of I.P.C. and he be released forthwith, if not required
in any other crime.
IV. Fine amount, if paid, be refunded to the appellant/original
accused.
V.
In light of the above, Criminal Appeal No. 250 of 2015 filed
by appellant/original complainant is hereby dismissed.
( V. K. JADHAV, J.)
( A. V. NIRGUDE, J. )
rlj/
