Yatendrasingh Ajabsingh Chauhan vs The State Of Maharashtra
2016 Latest Caselaw 3154 Bom

                                                                            Apeal616_2009.doc

    Vidya
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION




                                                                                      
                             CRIMINAL APPEAL NO. 616 OF 2009




                                                              
    Yatendrasingh Ajabsingh Chauhan                            ... Appellant
         Vs.
    The State of Maharashtra                                   ... Respondent




                                                             
    Mr. Niteen Pradhan i/b. Ms. S.D. Khot, Advocate appointed for the
    appellant.
    Mrs. U.V. Kejriwal, APP for the Respondent/State.

                                             CORAM: SMT. V.K. TAHILRAMANI &




                                                 
                                                    MRS.MRIDULA BHATKAR, JJ.
                                      ig         DATE: JUNE 23, 2016

    JUDGMENT (Per Mrs. Mridula Bhatkar, J.)

This Appeal is directed against the judgment and order dated 4 th/ 5th

May, 2009 passed by the learned Additional Sessions Judge, Mumbai in

Sessions Case No. 1003 of 2006 thereby convicting the appellant for the

offences punishable under section 302 of the Indian Penal Code for life

imprisonment and fine of Rs.5,000/-, in default, to suffer S.I. for one month.

2. It is the case of the prosecution that the appellant was working in the

company known as "Top security" and was posted as a security guard at

Mannat bungalow owned by Actor Shahrukh Khan. Deceased

Chandrapratap Singh and other security guards also deploy at the bungalow

on the night of 14th August, 2006. Deceased Chandrapratap Singh

Apeal616_2009.doc

questioned accused why he was sitting in the chair and whether his revolver

is filled with bullets or not. He also told the accused whether his fire arm is

working or not. The accused, in anger, held Chandrapratap Singh with

collar and then pulled the trigger of the revolver pointing at his chest, due to

which Chandrapratap Singh fell down. PW-1 Sandeep Dharmaji Lakhan

was also another security guard posted at the bungalow, who witnessed the

incident. After hearing the firing sound, security guards and other persons

came running at the spot. Chandrapratap Singh was shifted to the hospital,

however, he succumbed to the bullet injuries. At the instance of the

information given by Sandeep Lakhan, the offence of murder under section

302 and under the Arms Act was registered at C.R. No. 398 of 2006 against

the accused. Postmortem was conducted by PW-9 Dr. Gajanan Sheshram

Sawant. The police drew spot panchnama and recorded the statements of

the witnesses. The appellant/accused was arrested. After completion of the

investigation, the charge sheet was filed in the Court of Additional

Metropolitan Magistrate, 9th Court, Mumbai. The case was committed to the

Sessions Court. The learned Sessions Judge framed charge against the

accused under section 302 of the Indian Penal Code. The accused pleaded

not guilty. After considering the oral as well as documentary evidence, the

learned Sessions Judge convicted the accused as mentioned above. Hence,

this Appeal.

Apeal616_2009.doc

3. We went through the evidence of the witnesses, especially we have

considered the evidence of PW-1 Sandeep Lakhan, PW-3 Baburao Shivaji

Naik, PW-8 Dr. Hemantini Arvind Deshpande and PW-9 Dr. Gajanan

Sheshram Sawant. After going through the evidence, we found that it is a

full proof case.

4. The learned senior counsel Mr. Pradhan submitted that the case is

based on uncorroborated evidence of single eye witness. He submitted that

the evidence of PW-1 Sandeep Lakhan is not cogent and consistent with the

evidence given by PW-9 Dr. Gajanan Sheshram Sawant and PW-8 Dr.

Hemantini Arvind Deshpande on the point of the manner in which the

deceased was shot. He submitted that PW-1 Sandeep Lakhan has admitted

in the cross-examination that it was a contact shot and the accused had

touched the revolver to the body of the deceased when he fired at him.

However, the evidence of PW-9 Dr. Gajanan, who conducted postmortem,

has given admission in the cross-examination that it was not a contact firing.

The learned senior counsel further relied on the evidence of PW-8 Dr.

Hemantini and similar admission is given by PW-8 corroborating evidence

of PW-9 that the shot which was fired was not a contact firing. The learned

senior counsel, on the basis of this discrepancy, tried to build up the defence

that if the experts have specifically stated that it was not a contact firing,

Apeal616_2009.doc

then the evidence of PW-1 that accused touched the revolver to the body of

deceased when he fired is false. The learned senior counsel have submitted

that the opinion of two experts has nullified the statement or evidence of eye

witness PW-1 Sandeep in what manner the revolver was fired at the

deceased. This creates doubt whether PW-1 Sandeep was really present at

the time of the incident; whether PW-1 has really seen the actual firing or

not? The learned senior counsel submitted that the benefit of this doubt is to

be given to the accused. He further argued that it was not a premeditated

attack. The accused had no intention to kill the deceased. The action was

sudden without any intention. He argued that thus the case falls not under

section 302 but it is a case of culpable homicide not amounting to murder

falling under section 304 Part I or II of the Indian Penal Code.

5. Learned APP, in reply, has submitted that the applicant/accused is

rightly convicted under section 302. It is not a case of lesser degree offence.

She submitted that there may not be premeditation to commit the crime,

however, there was intention to kill deceased Chandrapratap Singh. She

argued that though the experts opinion is different than the evidence of PW-

1, the Court may consider the evidence of eye-witness, whose evidence is

fully reliable and consistent with the circumstances which are brought on

record by the prosecution.

Apeal616_2009.doc

6. There is only one eye-witness, i.e., PW-1 Sandeep Lakhan. He was

given a duty on that night at Mannat bungalow along with the deceased and

other security guards. PW-3 Baburao Naik is examined to prove the register

maintained by the security guards. This register marked 'Exhibit 25' is

produced before the Court where the guards have signed about their

presence. Thus, there is no doubt that PW-1 Sandeep Lakhan, deceased

Chandrapratap Singh and accused Yatendrasingh Chouhan were on duty at

the relevant time at Mannat bungalow. The incident of firing has taken

place at 11.45 p.m. at the gate. The complainant knew the deceased and the

accused, as they were working together as security guards. In the evidence

he has stated that Chandrapratap Singh asked Yatendrasingh why he was

sitting on the chair and also asked whether bullets are filled in the revolver

or not. It appears that accused lost his temper after hearing these questions

and he told the deceased that he would know whether the revolver is

working or not and he tested the revolver by firing at the chest of the

deceased. In the cross-examination, it is brought on record that PW-1

Sandeep Lakhan was 2 feet away from the spot where the incident has taken

place. Thus, the conversation between the deceased and accused was

audible to the witnesses.

7. It is true that PW-1 Sandeep Lakhan while describing the assault has

Apeal616_2009.doc

stated in the chief that Yatendrasingh pointed revolver at the chest of

Chandrapratap Singh and then opened the trigger of the revolver. However,

in the cross-examination in paragraph 10 he gave admission that he asked

the deceased as to what had happened. He further admitted that

Yatendrasingh touched the revolver to the chest of Chandrapratap Singh and

when it was fired, the revolver was touched to his body. PW-8 Dr.

Hemantini was working in the Forensic Science Laboratory in Mumbai at

the relevant time as Assistant Chemical Analyzer. She has examined six

chambered .32 inches revolver, 5 intact revolver cartridges and revolver

empty and also one lead bullet having rifling mark. She opined that empty

which is Exhibit 3 is fired from the revolver Exhibit 1. She has stated that

she has tested the bullets and then compared the lead bullet with test fired

lead bullets and its marking parameters were similar and gave report dated

30th December, 2008. In the cross-examination in paragraph 19 she admitted

that she gave opinion that the bullet must have been fired from the distance

of one feet or less but the firing was not contact firing, i.e., touching the

barrel of the revolver on the body of the victim. PW-9 Dr. Gajanan Sawant,

who conducted postmortem, in paragraph 13 gave admission that firing by

which the wounds were caused to the deceased was not contact firing.

8. Thus, the evidence of two experts corroborate each other that the

Apeal616_2009.doc

firing was not contact firing. However, eye-witness PW-1 Sandeep Lakhan

gave admission in the cross-examination that Yatendrasingh touched the

revolver to the chest of Chandrapratap Singh and when it was fired, it was

also touched to the body. This admission prima facie appears contradictory

to the opinion expressed by the experts on the point as to how the manner in

which the bullet was fired. However, this minor inconsistency cannot

nullify the presence of the eye-witness or his evidence. The witness in his

examination-in-chief has stated that Yatendrasingh pointed revolver at the

chest of Chandrapratap Singh. In examination-in-chief he has not stated that

the accused has touched the revolver to the body of the deceased. He

witnessed the incident when he was just 2 feet away. A possibility that the

accused might have touched the revolver to the body of the deceased and at

the time of actual firing, there could have been a gap of few inches between

the body of the deceased and barrel of the revolver. It is not expected from

the eye-witness, who has suddenly came such a shocking incident, to have a

photographic memory of the minor details. For a witness, the accused

pointed revolver at the chest of the deceased and fired very closely is a most

significant fact which he has perceived and stated accordingly before the

Court. We do not find any reason to disbelieve this witness. His evidence is

natural, consistent and creditworthy. PW-9 Dr. Gajanan, who conducted

postmortem, has opined that the cause of death was haemorrhage and shock

Apeal616_2009.doc

due to firearm injury (unnatural). The police witness who arrived there

immediately, as information was given to them, and conducted the

investigation, is also considered.

9. The submissions of learned senior counsel that it is a case of lesser

degree offence than murder does not appeal to us. It is true that there was

no premeditation, however, it is not a case of grave and sudden provocation.

The intention does not require premeditation but intention can be formed

within a couple of minutes. The intention can be gathered on the basis of

the act itself. In the present case, the appellant/accused was working as a

security guard. He was holding licence of revolver. He was fully aware of

the power of the firearm. He pointed the revolver at the chest, i.e., vital part

of the body of the deceased and fired the revolver. He was fully aware of

the consequence of his act and the injury is fatal and sufficient to cause

death. The deceased died instantaneously. Under such circumstances, we

are of the view that the appellant/accused is rightly convicted under section

302 of the Indian Penal Code. We confirm the sentence. Appeal is

dismissed.

         (MRIDULA BHATKAR, J.)                           (V.K. TAHILRAMANI, J.)