Sarju S/O Zuru Zore (In Jail) vs State Of Maharashtra, Through ...
2016 Latest Caselaw 945 Bom

                                                                           APEAL.492.13
                                               1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                             
                                   NAGPUR BENCH, NAGPUR.




                                                     
                                CRIMINAL APPEAL NO. 492 OF 2013




                                                    
         Sarju s/o Zuru Zore,
         Aged about 35 years, Occ. Farmer,
         R/o Rekhabhatal, Tq. Ettapalli,
         District Gadchiroli. 




                                         
         (Presently detained in Central Prison, 
         at Nagpur).            
                              ig                            ....          APPELLANT.

                      // VERSUS //
                            
         The State of Maharashtra, 
         through its Police Station
         Officer, Police Station 
         Bhamragad, District Gadchiroli.                    ....           RESPONDENT.
      
   



         Mr. S.P. Gadling, Advocate for appellant,
         Mr. V.A. Thakare, Additional Public Prosecutor for respondent.





                               CORAM :  B.R. GAVAI & MRS. SWAPNA JOSHI, JJ.

DATED : MARCH 29, 2016.

ORAL JUDGMENT (PER B.R. GAVAI, J.)

1] Being aggrieved by the judgment and order passed by the

learned Additional Sessions Judge, Gadchiroli dated 29.7.2013 in

Sessions Case No. 18/11, thereby convicting the appellant for the

offence punishable under Section 302 read with Section 149 of the

APEAL.492.13

Indian Penal Code and sentencing him to suffer imprisonment for life

and to pay a fine of Rs.1,000/- and in default, to suffer further S.I. for

one month, and also convicting the appellant for the offence

punishable under Section 307 read with Section 149 of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for

ten years and to pay a fine of Rs.1,000/- and in default, to suffer

further S.I. for one month, and convicting the appellant for the offence

punishable under Sections 353 read with Section 149 of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for

two years and to pay a fine of Rs.1,000/- and in default, to suffer

further S.I. for one month and convicting the appellant for the offence

punishable under Section 143 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for six months and to

pay a fine of Rs.500/- and in default, to undergo further S.I. for 15

days, the appellant has approached this Court.

2] The prosecution case, in brief, as could be gathered from

the material placed on record is as under :-

PW.1 Balasaheb Hanumant Deshmukh, who at the

relevant time was working as Sub-Inspector of Police and was

attached to A.O.P. Kothi, had received an information on 20.2.2008

APEAL.492.13

that around 70 to 80 naxalites are holding camp at Dobudharan area.

He had given information to superiors and called for special force

from Gadchiroli headquarters as well as Pranhita headquarter. After

the entire force had assembled, he had briefed them on 21.2.2008

regarding the action plan on 22.2.2008. At around 3.30 a.m. he

along with his two party commanders and 42 police personnel started

towards Doburdharan area. They reached near Dobur village at

around 5 to 5.30 a.m. When they entered the area of Dharan, he

saw a plain land. It was covered on three sides with mountains and

hilly parts. PW.1 Deshmukh divided the parties in three parts, each

headed by himself, Narayan Wadde and Rama Kudey respectively.

The naxalites who had assembled there were accosted from three

directions. Narayan Wadde asked the naxalites to surrender;

however, they did not surrender and started firing. The police party

also started firing in reply to the firing by the naxalites. PW.1

Deshmukh also asked to surrender. However, they did not

surrender and started firing towards him and his party. They were

abusing him. The firing continued for a considerable period. In the

firing, one constable Shrinivas Dandikwar received bullet injuries in

his body. After exchange of fire continued for sometime, the

naxalites ran away. The police party found dead bodies of four

APEAL.492.13

naxals. Injured Shrinivas was brought to Bhamragad. In the

Bhamragad hospital, Police Constable Shrinivas was declared dead.

PW.1 Deshmukh and other members of the party also seized various

weapons from the spot. After coming back to Bhamragad, oral

report came to be lodged by PW.1 Deshmukh below Exh. 21. Spot

panchnama was also executed below Exh. 20. The printed FIR

came to be lodged below Exh. 22. It appears that subsequently, the

present appellant came to be arrested on 8.7.2010.

3] Initially, charge-sheet was filed against six accused

persons. Four persons were shown as dead accused. One other

person was also named in the charge-sheet as having died in some

other crime. Therefore, though the names of five accused persons

were shown in the charge-sheet, they were not charge-sheeted since

dead.

4] The present appellant came to be arrested subsequent to

the filing of the charge-sheet. Since the other five accused could not

be arrested, the trial was conducted only against the present

appellant. Supplementary charge-sheet was also filed in the Court

of learned J.M.F.C., Aheri. Since the case was exclusively triable by

APEAL.492.13

the Court of Sessions, the same came to be committed to the Court

of learned Sessions Judge, Gadchiroli. The learned trial Judge

framed the charges below Exh. 3 against the accused. The

accused pleaded "not guilty" and claimed to be tried.

5] The evidence of PW.1 Balasaheb Deshmukh and PW.2

Rama Kudyami was recorded by the learned Sessions Judge on

2.4.2013 and 15.4.2013. The evidence of two other witnesses,

namely, PW.3 Pramod who was working as Police Inspector at

Bhamragad Police Station during 2008 to 2009 and PW.4 Somnath

Malkar who was working as P.S.O. at the said Police Station from

21.1.2008 to 6.8.2008, was also recorded. At the conclusion of the

trial, the learned trial Judge acquitted the accused for the offence

punishable under Sections 3/25, 5/27 of Indian Arms Act and Section

135 of Bombay Police Act and under Section 120B of the Indian

Penal Code. The learned trial Judge, however, recorded the order

of conviction and sentence against the present appellant, as

aforesaid. Being aggrieved by the order of conviction and sentence,

the present appeal has been filed by the appellant.

6] We have heard Shri S.P. Gadling, the learned Counsel for

APEAL.492.13

the appellant and Shri V.A. Thakare, the learned Additional Public

Prosecutor for the respondent/State.

7] Shri S.P. Gadling, the learned Counsel for the appellant,

submits that the order of conviction is based only on the evidence of

two witnesses, i.e. PW.1 Balasaheb Deshmukh and PW.2 Rama

Kudyami. He submits that both of them are eye-witnesses. He

further submits that the identification of the accused after a period of

five years for the first time in the dock itself creates a doubt regarding

the veracity of their evidence. The learned Counsel, therefore,

submits that the appeal deserves to be allowed and the order of

conviction set aside.

8] Shri V.A. Thakare, the learned Additional Public

Prosecutor for the respondent/State, on the contrary, submits that the

name of the present appellant is found in the FIR itself. He submits

that since the exchange of fire had taken place within a visible range

and since the witnesses had heard the name of the appellant as

Sarju to be the one in the naxalites party, no fault can be found with

identification of the appellant for the first time by these witnesses in

the dock. He, therefore, submits that the appeal is without merit and

APEAL.492.13

as such, liable to be dismissed.

9] The factum regarding the death of the deceased being

homicidal is not seriously disputed before us and as such, it will not

be necessary for us to go into the evidence in that regard.

10] The prosecution mainly relies on the evidence of PW.1

Balasaheb Deshmukh, the first informant who was at the relevant

time in-charge of the raiding party and PW.2 Rama Kudyami, who

was commander of the three groups formed by PW.1 Deshmukh. In

so far as the evidence of PW.1 Balasaheb Deshmukh is concerned,

he states that when the members of the naxalite group were abusing

and instructions were being given to the co-naxalites, he had heard

the name of Bhaskar. Sarju, Girdhar, Ramko, Tarakka, Narmada and

others. He has also stated in his evidence that he had seen the

present appellant firing from a short distance. He has identified the

accused in the Court on 2.4.2013, i.e. after a period of five years from

the date of the incident.

11] From the evidence of this witness as well as the evidence

of PW.2 Rama, it would be clear that there was a heavy exchange of

APEAL.492.13

fire between the police party and naxalite party. It is difficult to digest

that when heavy firing was taking place between the naxalites and

the police personnel, the witnesses could have heard the names of

the persons to whom instructions were given. No doubt that the

identification of the accused in the dock for the first time would itself

not vitiate the evidence of such witness. However, while appreciating

the evidence, all surrounding circumstances are required to be taken

into consideration. As already discussed hereinabove, not only there

was an exchange of fire from rifles and S.L.Rs., but as per these

witnesses even hand grenades were thrown at each other. In such

an atmosphere, it will be difficult to believe that a person who himself

was involved in heavy firing could have heard the names.

12] The evidence of PW.2 Rama is also on similar lines.

However, in his cross-examination, he has admitted that the area

where the firing was taking place, there was a thick forest. He has

further admitted that the naxalites were taking the support of the

trees and stones. It could thus be seen that the possibility of these

witnesses really seeing the present appellant firing is very remote. In

any case, even though the accused was arrested in July, 2010, no

identification parade was held. It is only in the month of April, 2013

APEAL.492.13

that these two witnesses have identified the present appellant to be

the same person who was firing at the police party.

13] The prosecution has also not examined the person who

has arrested the present appellant. It could thus be seen that the

prosecution has also not brought on record as to how they had

zeroed on the present appellant and connected him with the crime in

question. Due to the lack of the evidence connecting the present

appellant with the crime in question and particularly when neither of

the witnesses knew the present appellant prior to the incident, nor

had any occasion to see him prior to the incident, his identification for

the first time in the dock cannot be said to be beyond a shadow of

suspicion.

14] We, therefore, find that the prosecution has failed to prove

the case beyond reasonable doubt. The appellant/accused is entitled

to the benefit of doubt.

15] The Criminal Appeal is, therefore, allowed.

The impugned judgment and order of conviction and

sentence against the appellant/accused are quashed and set aside

APEAL.492.13

and the appellant/accused is acquitted of the offences. The fine

amount, if paid, be refunded to the appellant.

The appellant is ordered to be released and set at liberty

forthwith if not required in any other case.

JUDGE JUDGE .

J.