State Of Mah. Thr. Pso Balapur vs Raju Baliram Chavan
2017 Latest Caselaw 3257 Bom

                                                    1                                Judg. 160617 apeal 11.04.odt 

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                     NAGPUR BENCH : NAGPUR.

                                              Criminal Appeal No.11 of 2004

                State of Maharashtra, 
                through PSO Balapur.                                                    ....  Appellant.

                                                             -Versus-

              Raju Baliram Chavan,
              aged about 32 years, 
              R/o.-Balapur.                                                                 ....  Respondent.
              --------------------------------------------------------------------------------------------------
                            Mr. V.P. Maldhure, Additional Public Prosecutor for State.
                                        Mr. R.L. Khape, Advocate for respondent.
              --------------------------------------------------------------------------------------------------
                                                               Coram : Mrs. Swapna Joshi, J.

th Dated : 16 June, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellant-State against the

judgment and order dated 06-10-2003 delivered in Summary Criminal

Case No.1700 of 2001 by the learned Judicial Magistrate First Class,

Balapur, thereby acquitting the respondent of the offences punishable

under Sections 336 of the Indian Penal Code and 66(1)(b) of the Bombay

Prohibition Act, 1949.

2] Heard the learned Additional Public Prosecutor for the appellant-

State and Mr. Khapre, the learned Counsel for the respondent-accused. I

have carefully gone through the record of the case and the impugned

2 Judg. 160617 apeal 11.04.odt

judgment and order. After recording both the sides and on perusal of the

record it is noted that the judgment passed by the learned trial Judge is

not illegal or perverse.

3] The prosecution case in brief is that; on 01-01-2000,

PSI A.B. Pathan was attached to Police Station Balapur. He received a

phone call from the Control Room, Akola that Police Constable Raju

Chavan fired a bullet from his rifle (gun) at Calcutta Dhaba, Ridhora. On

receipt of this information, he called two panchas and recorded the

panchanama of the place of incident in their presence. It was observed

that the Calcutta Dhaba was located on National Highway No.6, situated

within the boundary limits of Ridhora. In the said Dhaba there were 22

pillars (poles) made up of bricks and cements on which there were country

tiles and on the front and back portion of Dhaba tin-sheets were spread.

The wooden cots were seen in the said Dhaba. It was noticed that due to

the bullet fired from the rifle, the said bullet hit a pole and the corner of the

said pole measuring 5 inches in width and 3 inches in depth was fallen

on the place of incident. At the relevant time PSO Balapur who was

attached to the Police Station, lodged the complaint against the accused.

After recording the panchanama it appears that further investigation was

carried out by Police Station Officer Shri Pathan. The charge-sheet was

filed. The learned Judicial Magistrate First Class framed the charge

under Sections 336 of the Indian Penal Code and 66(1)(b) of the Bombay

Prohibition Act.

              4]       I have perused the entire evidence on record.   Heard the learned 





                                                     3                                Judg. 160617 apeal 11.04.odt 

Additional Public Prosecutor for the appellant-State and Mr. Khapre, the

learned Counsel for the respondent-accused.

5] The learned Additional Public Prosecutor for the appellant-State

submitted that the order passed by the learned trial Judge is illegal and

perverse. The learned trial Judge has failed to consider the evidence on

record and has acquitted the accused. The learned Counsel for the

respondent Mr. Khapre contended that there is absolutely no evidence to

prove the guilt of the accused and the learned trial Judge has rightly

acquitted the accused as there is absolutely no evidence on record to

show that at the time of the incident the accused did rash or negligent act

of firing the bullet from his rifle, endanger human life or personal safety of

others. The prosecution has also failed to prove that at the time of the

incident the accused had consumed liquor without any valid permit or pass

and committed the offence. In order to prove its case, the prosecution has

examined simply two panchas. Both the panchas turned hostile and did

not support the prosecution case. However, during the cross examination

(PW-1) Samadhan Wankhede admitted that there was a Dhaba and there

was damage to one cement pillar. It was found that there was damage to

the said pillar about 5 inches x 3 inches from 6 feet from the ground.

PW-1 admitted that the Police prepared the panchanama in his presence

(Exhibit-12). PW-1, however, denied that the accused was present there

and he was under the influence of liquor. He also denied that the mouth of

the accused smelling like alcohol. He further denied that the eyes of the

accused were red and he was unable to control himself. Thus, PW-1 did

4 Judg. 160617 apeal 11.04.odt

not support the prosecution case. However, his testimony indicates that

the pillar in the Dhaba was damaged up to a certain extent.

6] The prosecution further examined (PW-2) Mukundrao Jagtap. He

was also declared hostile by the prosecution as he did not support its

case. During the cross examination PW-2 stated that he does not know

when the Police seized one rifle (gun) B.No.314, Body No.45773, 9 bullets

of rifle (gun) and 1 empty rack of bullets from accused Raju Chavan.

7] On careful scrutiny of the testimonies of PW-1 and PW-2, it is

noticed that, they were simply panchas on the point of place of incident

and the seizure of rifle (gun) and bullets. It is, however, not clear as to

from whom those articles were taken charge. Apart from these two

witnesses the prosecution failed to examine any of the witnesses who

could have supported the prosecution case including the complainant.

Thus, there is absolutely no iota of evidence on record to show that the

accused did rash or negligent act of firing the bullet from his rifle,

endangering human life or personal safety of others. The prosecution

also failed to prove that the accused was under the influence of liquor

without any valid permit or pass. Thus, the learned trial Judge has rightly

acquitted the accused of the aforesaid charges.

8] I do not find any illegality or perversity in the judgment passed by

the learned trial Judge. It is well settled principle of law that in exercise of

its appellate jurisdiction particularly in appeal against acquittal, it is not

open to this Court to substitute its own view with a view taken by the lower

Court, unless the view taken by the lower Court is illegal, perverse or

5 Judg. 160617 apeal 11.04.odt

against the principle of law.

9] There are no sufficient grounds made out by the appellant/State to

interfere with the impugned judgment and order. In these circumstances,

the appeal deserves to be dismissed and accordingly it is dismissed.

JUDGE

Deshmukh