Balu @ Meghanand S/O Punamchand ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 3349 Bom

Judgment

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                                       1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

                  CRIMINAL APPEAL NO.151 OF 2015

1. Balu @ Meghanand s/o
Punamchand Meshram,
Aged about 28 years,
Occupation Labour.

2. Sandeep s/o Digambar Wasnik,
Aged about 27 years,
Occupation Labour.

Both r/o Dhotra, Taluka Chandur
(Rly.), District Amravati.                       ..... Appellants.

                                ::   VERSUS   ::

State of Maharashtra,
Through P.S.O. Kurha, Taluka 
Chandur (Rly), District Amravati.   ..... Respondent.
==============================================================
          Shri Mahesh Rai, Counsel for the appellant.
          Shri N.B. Jawade, Addl.P.P. for the respondent/State.
==============================================================


                              CORAM : V.M. DESHPANDE, J.

                              DATE     : JUNE 20, 2017.

ORAL JUDGMENT

1. Present appeal is directed against judgment

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and order of conviction passed by learned Additional

Sessions Judge-4, Amravati dated 2.4.2015 in Sessions

Trial No.132 of 2009, by which learned Judge of the

Court below convicted both appellants for the offence

punishable under Section 397 read with Section 34 of

the Indian Penal Code and were directed to suffer

rigorous imprisonment for seven years and to pay a fine

of Rs.3,000/- by each of them and in default to suffer

further rigorous imprisonment for three months.

2. The prosecution case in brief, is as under:

PW10 Mohan Thakurdas Sugandhi, who on

31.3.2009 was police officer of Tiwasa Police Station,

while on patrolling near Patil Dhaba, received an

information about firing on Shirajgaon - Tiwasa Road.

He also received information that injured in the said

incident is brought to the Gurudeo Hospital, Mozari.

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He, therefore, rushed to the said hospital. There he

noticed an Ambulance was standing outside the hospital

and injured PW1 Vinod Bhimraoji Isal was inside the

Ambulance. PW10 Sugandhi noticed that though PW1

Vinod was afraid, he was conscious and upon inquiries

made by PW10 Sugandhi, he found that PW1 Vinod was

in a position to talk. Therefore, he made inquiries with

PW1 Vinod. He recorded his statement. Thereafter,

injured Vinod was referred to Amravati. Then, PW10

Sugandhi came to the spot. That time there he noticed

presence of Sub Divisional Police Officer Shri Patil.

The spot of the incident was within the jurisdiction of

Kurha Police Station and the Police Station Officer of

Kurha in the meantime reached to the spot. At the

directions and instructions of Sub Divisional Police

Officer Shri Patil, PW10 Sugandhi handed over the

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statement of PW1 injured Vinod recorded by him to the

Kurha Police Station Officer.

3. Exhibit 27 was recorded by PW10 Sugandhi.

It is dated 31.3.2009 and it was recorded at camp

Gurukuj Hospital. As per said statement, when PW1

Vinod was proceeding to Dhotra at about 01:30 p.m. on

31.3.2009 with a money bag for payment of labourers on

his motorcycle bearing registration No.MH-27/R/5364, he

was accosted by two unknown persons in between

Dhotra and Shirajgaon. Their faces were covered in

order to hide their identity and were holding small gun.

They tried to snatch the bag from him containing

amount of Rs.1,03,400/-. However, PW1 Vinod resisted

with full force and thereby defeated attempt of those

two unknown persons to snatch away the money bag.

That time, fire was open towards him resulting into an

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injury on his left shoulder. Thereafter, those two

unknown persons ran away from the spot along with his

motorcycle and cellphone.

4. PW9 Gulabsingh Gyansingh Solanke, was

Police Station Officer at Police Station Kurha in the

month of March 2009. When got information about

firing, he reached to Shirajgaon - Dhotra Road. Exhibit

27 was handed over to him.

On the basis of aforesaid statement Exhibit

27, a crime was registered with Kurha Police Station

vide Crime No.33 of 2009 for the offences punishable

under Section 397 read with Section 34 of the Indian

Penal Code and under Sections 3 and 25 of the Arms Act,

1959. The printed F.I.R. is at Exhibit 81.

5. After registration of crime, PW9 Solanke

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again visited to the spot of occurrence, prepared spot

panchanama, and seized three cartridges and pieces of

motorcycle's indicators from the spot. He drew spot

panchanama Exhibit 77 and Japti panchanama Exhibit

78 in the presences of panchas. He also seized

motorcycle of the complainant laying in the lake in

jungle area of Dhotra. To that extent, seizure was

drawn in the presence of panchas. At about 06:00 p.m.

on 31.3.2009 itself, he arrested the appellants and

recorded the statements of three witnesses.

6. During police custody remand,

appellant/accused No.1 Balu @ Meghanand s/o

Punamchand Meshram gave his memorandum

statement by which he agreed to show the place where

he concealed the weapon, i.e. a revolver used in the

crime. His memorandum statement was recorded in the

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presence of panchas (Exhibit 41). Thereafter,

Investigating Officer along with panchas and other

police personnel reached to the spot as per the

directions of appellant/accused No.1 Balu Meshram and

seized revolver which was concealed beneath a stone

near a tree. No separate recovery panchanama was

recorded. However, in Exhibit 41 itself, its recovery is

mentioned.

7. Appellant/accused No.2 Sandeep s/o Digambar

Wasnik also made his disclosure statement by which he

agreed to show the place where he has thrown the

cellphone of the complainant. His disclosure statement

was recorded in the presence of panchas Exhibit 42 and,

thereafter, police party reached to the spot, which was a

well. With the help of one Sagar Ingole, cellphone was

retrieved from the said spot. The recovery is also

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mentioned in Exhibit 42.

8. Thereafter, he again recorded statement of

witnesses. He asked police personnel to visit the

hospital at Nagpur where PW1 injured Vinod was

admitted. Thereafter, he sent all Muddemal articles to

chemical analyzer. After completion of investigation,

final report was presented in the Court.

9. The case was made over to the Court of

Sessions by learned Magistrate by passing committal

order. Learned Additional Sessions Judge framed

charged against both the accused for the offences

punishable under Section 397 read with Section 34 of

the Indian Penal Code and under Sections 3 and 25 of

the Arms Act, 1959. Both the appellants/accused denied

the charge and claimed for their trial.

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10. In order to bring home the guilt of the

appellants/accused, 11 prosecution witnesses were

examined. Learned Judge of the Court below after

appreciating the prosecution evidences, acquitted the

appellants/accused from the charge under Sections 3

and 25 of the Arms Act, 1959. However, learned Judge of

the Court below convicted the appellants/accused for

the offence punishable under Section 397 read with

Section 34 of the Indian Penal Code.

11. I have heard learned counsel Shri Mahesh

Rai for the appellants/accused and learned Additional

Public Prosecutor Shri N.B. Jawade for the

respondent/State. Both learned counsel took me

through the record and proceedings and submitted

their elaborate submissions in order to canvass their

respective prayers. Though the prosecution has

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examined about 11 witnesses, there is no eyewitness's

account in the present case.

12. PW2 Dr. Rajesh Ramkrushna Basate was

working as a Residential Medical Officer at Shri

Gurudeo Ayurved Rugnalaya. On 31.3.2009, PW1 Vinod

was brought to him by the police having gun shot injury

to his left shoulder. He examined him. He, thereafter,

referred him for X-Ray and further treatment to the

Civil Hospital at Amravati. The certificate was given by

him and said certificate is at Exhibit 34, which was

obtained by the police from him on 21.4.2009.

13. PW3 Sanjay Rangraoji Gadage was examined

by the prosecution to prove the panchanama of the spot.

However, the said witness turned hostile.

14. PW4 is Virendra Tukaram Ashtikar. This

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witness was examined by the prosecution to prove the

disclosure statement made by both the accused persons.

15. PW5 a pancha witness Dhnyaneshwar

Namdeorao Taywade who has proved the seizure

panchanama Exhibit 47 by which motorcycle of PW1

Vinod was recovered from Dahegaon Dhanora Talao

(Lake).

16. PW6 Ramesh Bhashkarrao Bhandari was

police constable at relevant time and was working with

Kurha Police Station who was sent by PW9

Investigating Officer Gulabsingh Solanke with a duty

pass for obtaining medical report and bullet, which was

found in the body of PW1 Vinod, from the Orange City

Hospital at Nagpur. He handed over the medical

certificate as well as bullet in a sealed bottle to the

investigating officer and the investigating officer took

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in his possession from PW6 Ramesh Bhandari by

drawing seizure panchanama Exhibit 53.

17. PW7 Nirbhay Ashok Karandikar is a medical

practitioner and was consulting Honourary

Orthopaedic Surgeon at Orange City Hospital and

Research Centre at Nagpur. He treated PW1 Vinod and

also operated on his left shoulder on 1.4.2009. He

proved his operational notes and those are at Exhibit

60. Injury report of PW1 Vinod is at Exhibit 61.

18. PW8 Niranjan Wamanrao Ganorkar is a

pancha to the spot of the incident.

19. Another witness is, PW11 Nayab Tahsildar

Vijay Ramchandra Kalbande, who conducted test

identification parade.

20. From the evidence of PW7 Dr. Nirbhay

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Karandikar, who operated on the left shoulder of PW1

Vinod, operational notes Exhibit 60 and injury notes

Exhibit 61 show that there cannot be any doubt that

PW1 Vinod suffered gun shot injury on his left shoulder.

The chemical analyzer's report also

corroborates the gun shot injury. The question is,

whether appellants/accused are authors of said gun shot

injury occurred to PW1 Vinod?

21. From report Exhibit 27 it is clear that

incident has occurred in broad daylight. The

prosecution also could not bring any eyewitness to the

said firing.

Report Exhibit 27 is also silent that at the

time of incident, PW1 Vinod was knowing

appellants/accused as his assailants. The said report is

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very specific. It says that when he was accosted on road

in between Dhotra and Shirajgaon by two unknown

persons, their faces were covered with scarf and they

tried to snatch the bag containing cash. Thus, from the

first information report it is crystal clear that at the

time of incident, he was not having any opportunity to

observe faces of appellants/accused.

However, in examination-in-chief, PW1 Vinod

stated on oath that during scuffle in between him and

them, those two persons' scarf were removed and he

could observe their faces and he was knowing them by

their faces.

22. The test identification parade was held at the

hands of PW11 Nayab Tahsildar Vijay Kalbande.

However, test identification parade was discarded by

learned Judge of the Court. I concur with his

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reasonings for discarding the test identification parade.

23. The test identification parade is not a

substantive piece of evidence. The identification by

PW1 complainant Vinod or eyewitness in the Court

during the course of the trial has its own importance.

During the course of evidence, PW1 Vinod

states as under:

"When I refused to give bag, there was scuffle between me and them. Then he has shot on my left hand shoulder. During the scuffle between them, their clothes covered were removed by me. I was knowing them by face. One of them was also working as labour in Hriyali Science. Accused before the Court are the same."

During the scuffle removal of scarf from their

faces and noticing that those two persons were known

to PW1 complainant Vinod by face was very vital piece

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of information. Non-mentioning of this particular fact

at first, an opportunity assumes importance since

subsequently those two persons were identified by PW1

complainant Vinod in the identification parade in the

police station when they were on bail refrain me from

believing this version straightway unless there is a

corroboration to the entire prosecution case by

attending the circumstances.

24. Both the appellants/accused were arrested on

31.3.2009. Arrest panchanama of appellant/accused No.1

is placed on record at Exhibit 82, whereas arrest

panchanama of appellant/accused No.2 is at Exhibit 83.

Arrest panchanamas show time of arrest as 18:00 hours.

25. PW9 Gulabsingh Solanke is very specific that

he got a lead from statements of three persons whose

statements he recorded on 31.3.2009 itself and on the

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basis of statements of those, at 6:00 p.m. on 31.3.2009, he

arrested appellants/accused. Perusal of charge-sheet,

however, shows that on the basis of statements of

witness Nos.4 and 5, who are mentioned in the charge-

sheet, present appellants/accused were arrested.

Witness Nos.4 and 5 in the charge-sheet show their

names as Ganesh and Pramod. Thus, it is the case of the

prosecution that on the basis of statements of these two

persons, the investigating officer got a lead and,

thereafter, he arrested the appellants/accused person.

Therefore, naturally, these two witnesses would have

been most important witnesses for the prosecution.

However, for the reasons best known to the prosecution,

these two witnesses were not examined by the

prosecution.

26. Further, Exhibit 47 is seizure panchanama.

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Under this seizure panchanama, hero-honda of PW1

complainant Vinod bearing No.MH-27/R/5364 was seized

from Dhotra lake.

According to the first information report, the

appellants/accused ran away from the spot along with

motorcycle. The appellants/accused were arrested at

18:00 hours on 31.3.2009 while Exhibit 47 seizure memo

shows that vehicle was seized from the spot at 17:25

hours, that is even prior to arresting of the

appellants/accused persons. Further, the entire version

of the prosecution case is totally silent as to how the

investigating officer or the prosecution got information

about laying of the motorcycle in the lake even prior to

arrest of the appellants/accused persons.

27. Insofar as memorandum statement of the

appellants/accused persons are concerned, firstly I shall

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deal with seizure of cellphone. This cellphone, which

was taken away from PW1 complainant Vinod, was

discovered at the behest of appellant/accused No.2

Sandeep Wasnik. His disclosure statement is at Exhibit

42. According to the evidences of the prosecution, the

place, that was disclosed by this appellant/accused

where he thrown Nokia Cellphone, was a well having

depth of 50 to 60 feet. As per the evidence of the

investigating officer, the Nokia Cellphone was brought

from inside the well with the help of one Sagar Ingole.

This Sagar Ingole was also not examined.

It is worth to note an admission of the

investigating officer during his cross-examination that

when the police along with appellant/accused No.2

proceeded towards the well, Sagar Ingole was not with

him. In that behalf, therefore, examination of Sagar

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Ingole, in my view, was important to prove his presence

so as to give credit to the prosecution version that it is

he who took out the cellphone from the well.

Another important thing, in respect of this

seizure, is that after seizure of this cellphone, the

investigating officer failed to get it identified through

PW1 complainant Vinod to show that the said Nokia

Cellphone was the very same cellphone that was

snatched away by the appellants/accused persons from

him at the time of incident.

Exhibit 42 disclosure statement, which also

includes recovery panchanama, shows that the Nokia

Cellphone was silver colour mobile phone. However,

when PW4 Virendra Ashtikar, who was a pancha to the

process of recording memorandum statement and

recovery of the Nokia Cellphone, stated on oath that he

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can distinguish the colours. However, when Article-D

Nokia Cellphone was shown to him, he admitted that its

colour is light yellow one. Thus, it is crystal clear that it

was not a cellphone having silver colour. From the

cross-examination of this prosecution witness it is clear

that his house is adjacent to the police station and he

has also acted as a pancha in one or two cases,

therefore, his possibility under thumb of the police

cannot be completely ruled out.

28. Insofar as pistol is concerned, though the

pistol is shown to be recovered beneath a stone,

however from the open spot which was accessible to

anyone. Further, the investigating officer has not only

shown ignorance but also has admitted that he has not

investigated at all as to how this particular weapon

came in possession of appellant/accused No.1.

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There is nothing on record to show that

cartridges, which were seized from the spot of incident

by the investigating officer, are fired through the pistol

which is recovered at the behest of appellant No.1. In

that view of the matter, the recovery of the said pistol at

the behest of appellant No.1 loses its importance.

Having this quality of evidence available on

record, in my view, it will be very unsafe to accept

recoveries made by the police at the behest of the

appellants/accused.

29. PW1 Vinod used to visit the police station to

get released his vehicle. He also admitted that he used

to see the accused persons in the police station prior to

their test identification parade that was held in the

police station. Therefore, I am of the view that

identification of these two accused persons in the Court

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not only loses its importance but also its sanctity.

30. So far as the chemical analyzer's report is

concerned, it is a corroborative piece of evidence.

However, primarily it is the duty of the prosecution that

the appellants/accused are authors of injury and if their

culpability is proved beyond reasonable doubt. Further,

the evidence of PW1 Vinod is totally silent that which of

the appellant fired at him. If his evidence is to be

believed that he removed scarf during scuffle,

thereafter, there was a fire from the revolver, and he

was able to identify the appellants/accused by faces, it

would have been most natural on the part of PW1

injured Vinod to state from the witness box which

appellant fired at him. The said also one of the

indications that really any of appellants/accused fired

at him. In the totality of the evidences, as discussed

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above, though PW1 Vinod suffered fire arm injury on his

left shoulder, the prosecution has utterly failed to prove

the guilt of the appellants/accused as his assailants and

appellants/accused are responsible for the injury caused

to him by pistol.

Consequently, I pass the following order:

ORDER

The criminal appeal is allowed.

2. Judgment and order of conviction, passed

by learned Additional Sessions Judge-4,

Amravati dated 2.4.2015, in Sessions Trial

No.132 of 2009, convicting appellants/accused

for the offence punishable under Section 397

read with Section 34 of the Indian Penal

Code, is hereby quashed and set aside.

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3. Both the appellants/accused are acquitted

from the charge under Section 397 read with

Section 34 of the Indian Penal Code.

4. The appellants/accused, who are in jail,

shall be released forthwith, if their presence

is not required in any other matter.

5. Muddemal property be destroyed, after the

appeal period is over.

JUDGE

!! BRW !!

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