Bombay High Court

Ganesh @ Mankya Nandkishore ... vs State Of Mah.Thr.Pso Wardha on 11 December, 2017

Bench: R. B. Deo

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.483 OF 2004


 Ganesh @ Mankya s/o Nandkishore Thakur,
 Aged about 26 years, 
 Resident of Kochar Ward, Hinganghat, 
 Tahsil and District Wardha.                                     ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through P.S.O. Hinganghat, 
 District Wardha.                                                ....       RESPONDENT

 ______________________________________________________________

               Shri N.A. Badar, Advocate for the appellant, 
     Ms. Ritu Kaliya, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 11 DECEMBER, 2017.

ORAL JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 23-7-2004 passed by the learned 2 nd Ad hoc Additional Sessions

Judge, Wardha in Session Trial 135/2003, by and under which the

appellant is convicted for offence punishable under Section 307 of the

Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous

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imprisonment for five years and to payment of fine of Rs.200/-.

2. Heard Shri N.A. Badar, learned Advocate for the appellant

and Ms. Ritu Kaliya, learned Additional Public Prosecutor for the

respondent.

3. The appellant (hereinafter referred to as the "accused"),

alongwith Indu @ Indrasen Pakharani and Pankaj Lonare faced trial for

the charge of entering into criminal conspiracy and in pursuance

thereof for attempt to kill one Gajanan Fulmali by country made

revolver (deshi katta).

4. The gist of the prosecution case is that between 9-00 to

9-30 p.m. on 23-6-2003 Gajanan Fulmali and his friend one Manoj

Kumare were standing infront of a pan shop near Laxmi Talkies,

Hinganghat. The accused alongwith co-accused Pankaj Lonare came

on scooter and started abusing Manoj. Gajanan requested the accused

and Pankaj Lonare not to abuse his friend Manoj. The accused

whipped out a deshi katta and fired one round on the person of

Gajanan, who suffered injury on the right side of the abdomen. The

accused fled from the scene. Gajanan became unconscious, Police

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Constable Rupam Govardhan and Manoj Kumare carried the injured

Gajanan to the Police Station, Gajanan lodged report on the basis of

which offence under Section 3 read with Section 25 of the Indian Arms

Act and under Section 307 of the IPC was registered. Gajanan was

referred to hospital for medical examination, the investigation

commenced and the accused was arrested. Pursuant to memorandum

of admission, deshi katta and live bullet were recovered from below the

steel drum in the kitchen of the house of the accused. Spot

panchanama was recorded, the used bullet was seized from the spot,

statements of witnesses were recorded, the said weapon, used bullet

and live bullet were sent to the Ballistic Expert. The investigation

culminated in submission of charge-sheet in the Court of Judicial

Magistrate First Class, Hinganghat, who committed the case to the

Sessions Court.

The learned Sessions Judge framed charge for offence

punishable under Sections 307 and 120-B of the IPC, the accused

abjured guilt and claimed to be tried in accordance with the law and

the defence was of total denial. Pankaj Lonare-accused 3 did not

appear before the Court after framing of the charge and was treated as

an absconder.

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5. The prosecution examined as many as twelve witnesses to

wit :

(a) P.W.-1 Raju s/o Gulabrao Kotakar, a panch to the

confessional statement of Ganesh Thakur (Exhibit 34).

(b) P.W.2 Arun s/o Marotrao Pullarwar, as an eyewitness who

was working with Laxmi Talkies and who was present at

the talkies gate during 9-00 to 12-00 p.m. cinema show

(Exhibit 35).

(c) P.W.3 Vilas s/o Ganbaji Nimgade, as an eyewitness

(Exhibit 36).

(d) P.W.4 Prashant s/o Ramchandra Thakare, a panch to the

spot panchanama and seizure panchanama from the spot

(Exhibit 37).

(e) P.W.5 Dr. Sachin s/o Vijay Dahake, Medical Officer

(Exhibit 40).

(f) P.W.6 Rupam s/o Diwakar Gowardhan, Police Constable,

Buckle No.180 (Exhibit 43)

(g) P.W.7 Sayyad Nasir s/o Sayyad Hassan, as an eyewitness

(Exhibit 41).

(h) P.W.8 Babalu @ Subhash s/o Laxmanrao Walde, a panch

to the confessional statement (Exhibit 52).

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           (i)     P.W.9   Gajanan   s/o   Vitthalrao   Fulmali,   a   victim   (Exhibit

                   53).

           (j)     P.W.10 Manoj s/o Dadarao Kumare (Exhibit 55).

           (k)     P.W.11 PSI Shri Dilip s/o Gangaram Masram (Exhibit 56),

                   and

           (l)     P.W.12 Vasant s/o Champatrao Sayam,   Police Inspector

                   (Exhibit 78).

6. The prosecution has examined P.W.2 Arun Pullarwar,

P.W.3 Vilas Nimgade and P.W.7 Sayyad Nasir as eyewitnesses.

Concededly, having refused to support the prosecution, the said

witnesses were cross-examined pursuant to permission granted under

Section 154 of the Indian Evidence Act, however, nothing is elicited in

the cross-examination to take the case of the prosecution any further.

7. The injured witness Gajanan Fulmali (P.W.9) did not

support the prosecution. P.W.9 has deposed that he did not see the

assailant. The prosecution was permitted to put questions in the

nature of cross-examination to P.W.9. In the cross-examination, P.W.9

denied the suggestion that the accused arrived on scooter alongwith

Pankaj Lonare and abused Manoj Kumare. The witness categorically

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denied that the accused pulled out a revolver from the waist and

threatened the injured witness. The injured witness has further denied

that the accused fired at him and it is also denied that the witness told

the police that it was the accused who had fired.

P.W.10 Manoj Kumare failed to identify the accused in the

Court as the person named by him to the police and was treated as a

hostile witness. In the cross-examination, although he stated that the

accused Mankya @ Ganeshsingh Thakur is present in the Court, he

volunteered that he was not present on the spot. It would be apposite

to reproduce the cross-examination for the prosecution and the cross-

examination for the accused.

"Cross-examination by APP for the State :

Today accused Mankya @ Ganeshsingh Thakur is present in the Court. Witness volunteers that he was not present on the spot.

Cross-examination by Shri P.S. Taksande, Advocate for accused No.1 :

I was not acquainted with accused before the incident. Some accused were brought by police by arresting them. I was shown by police the present accused Mankya Thakur as Mankya @ Ganeshsingh Thakur.

We were told the names of accused by police. Accordingly I am stating the name of Mankya Thakur."

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8. The eyewitnesses including the injured have refused to

support the prosecution. Nothing is elicited in the cross-examination

for the prosecution to assist the prosecution. The injured P.W.9

Gajanan Fulmali has persistently denied that he was fired at by the

accused. The fact that an omission is brought on record and proved

through the Investigating Officer, would hardly make the said portion

of the previous statement admissible in evidence. The learned Sessions

Judge could not have proceeded on the assumption that such proved

omission is substantive evidence. Be it noted, that it is categorically

denied by the injured witness that he gave any statement to the police

implicating the accused.