The State Of Maharashtra vs Niranjan & Ors
2017 Latest Caselaw 3416 Bom

                                                                 cria279.00
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO.279 OF 2000

 The State of Maharashtra,
 Through Police Station Bidkin,
 Tq-Paithan
                                    ...APPELLANT 
        VERSUS             

 1) Niranjan s/o Shripatrao Jadhav,
    Age-28 years, Occu:Business,
    R/o-Cidco, Aurangabad,
    N-3, Plot No.34, 
    Opposite to Hotel Ambassador,

 2) Amarasaha s/o Laljisaha,
    Age-35 years, Occu:Business,
    R/o-Misarwadi, Backside to
    Greaves Co., Cidco,
    Aurangabad,

 3) Pranabkumar s/o Khagindrasingh
    Chakrawarti,
    Age-50 years, Occu:Service,
    R/o-Cidco, Aurangabad,
    4-6-01, Milannagar Society,
    N-5 Sector, CIDCO Colony,
 (Appeal abated as against Respondent No.3
  as per Court's Order dated 1st July,2009),

 4) Shaikh Usman s/o Shaikh Kadar,
    Age-42 years, Occu:Service,
    R/o-Roshangate, Aurangabad,
    or At Post-Chouka,
    Tq-Phulambri, Dist-Aurangabad,
    At Present: Karim Colony
    Galli No.5 
                                    ...RESPONDENTS


::: Uploaded on - 28/06/2017                  ::: Downloaded on - 28/06/2017 23:59:43 :::
                                                                cria279.00
                                    2



                      ...
    Mr.R.V. Dasalkar A.P.P. for Appellant - State.
    Mr. A.M. Karad Advocate for Respondent No.1.
    Mr. S.W. Mundhe Advocate for Respondent Nos.
    2 and 4 (Absent).
    Appeal abated as against Respondent No.3. 
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ. 

DATE : 21ST JUNE, 2017

JUDGMENT [PER S.S. SHINDE, J.] :

1. This Appeal is directed against the

Judgment and Order dated 6th January, 2000 passed

by the Additional Sessions Judge, Aurangabad in

Sessions Case No.140 of 1999, thereby acquitting

all the accused i.e. Respondent Nos.1 to 4 from

the offences punishable under Sections 307, 186

and 506 read with 34 of the Indian Penal Code (for

short "I.P. Code").

2. The prosecution case, in brief, is as

under:-

A) Accused No.1 is the owner of Niranjan

cria279.00

Alloy Pvt. Ltd. situated at Bidkin, Tq-Paithan,

Dist-Aurangabad. Accused No.2 to 4 are servants in

the company of accused No.1. According to the

prosecution, there had been theft of electricity

from the said company and therefore Maharashtra

State Electricity Board (for short "M.S.E.B.") had

installed a check-meter opposite the company and

in order to guard the check-meter, they had

appointed private security guards from Singh

Security Agency, so also two M.S.E.B. workers were

also deputed at the spot, at the same time one

armed constable was also deputed to that spot.

B) On 31st January, 1998, complainant Dinesh

Vairagade, who is Assistant Director, Vigilance

Security, M.S.E.B. Department had visited the

spot, opposite the company at about 11.00 hours to

find out whether security agency persons and other

staff were carrying on duties properly.

C) It is the case of prosecution that around

21.45 hours accused No.1 - Niranjan Jadhav came in

cria279.00

a car while accused No.2 to 4 also came along with

accused No.1. Accused No.1 - Niranjan Jadhav

questioned police constable Gaikwad, "if he had

arms", and also threatened him that accused No.1

also possessed his arms. Thereafter accused No.1 -

Niranjan Jadhav fired a bullet in the direction of

the complainant Dinesh Vairagade. The said bullet

passed near from head of complainant and had

missed him. Accused No.1 thereafter told other

accused persons to take revolver and fill the

bullet and return. At this juncture police

constable Gaikwad told accused No.1 that if he

fired again, then police constable Gaikwad would

also fire with his rifle. The accused persons

thereafter went away. Accordingly, complainant

Dinesh Vairagade went to police station Bidkin and

gave his complaint and the same was registered as

Crime No.76 of 1998.

D) Thereafter Investigating Officer

immediately came to the spot, recorded statement

of witnesses and had drawn spot panchnama. The

cria279.00

Investigating Officer arrested accused Nos.1

to 4. He also seized revolver and 25 cartridges.

He had seized camera from the house of accused

No.4 - Shaikh Usman. So also he had taken search

of accused No.1 - Niranjan Jadhav. The seized

revolver and cartridges were sent to ballistic

expert and after receipt of the report, submitted

the charge-sheet against the accused persons. The

Magistrate committed the case to the Court of

Sessions.

3. A charge was framed by the Additional

Sessions Judge, Aurangabad against all the accused

persons, to which accused pleaded not guilty and

claimed to be tried. The defence of the accused

was of total denial.

4. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted all the accused persons from the

offences with which they were charged, as stated

herein above in Para-1 of the Judgment. Hence this

cria279.00

Appeal.

5. Heard learned A.P.P. appearing for the

State and learned counsel appearing for

Respondent No.1 - accused No.1, at length. With

their able assistance, we have carefully perused

the entire notes of evidence so as to find out

whether the findings recorded by the trial Court

are in consonance with the evidence brought on

record or otherwise.

6. To prove its case, the prosecution

examined PW-1 Dinesh s/o Tukaram Vairagade, who is

informant in this case. He deposed that on 31st

July, 1998, he was working as Assistant Director,

Vigilance and Security Department at M.S.E.B.

Office, Aurangabad. He deposed that accused No.1

was owner of Niranjan Alloys Pvt. Ltd., situated

at Bidkin, Tq-Paithan and accused Nos.2 to 4 were

servants in the company of accused No.1. He

further deposed that on 31st July, 1998, he had

gone to Bidkin, opposite the road near Niranjan

cria279.00

Company. As there was theft of electricity by

Niranjan Company, a check-meter was installed, on

the four pole electric structure. He deposed that

by this check-meter it could be gathered if there

was any theft of electricity. To see that the

check-meter is not destroyed, they had appointed a

private security guard of Singh Security Agency.

Four guards were posted at that place. He had also

deputed two M.S.E.B. workers, namely Govind Yadav

and Sudarshan Chaudhary. He further deposed that

they had also sought help of one armed constable

for being deputed at that spot, and accordingly

constable Trimbak Gaikwad was also posted at that

spot.

. PW-1 Dinesh Vairagade further deposed

that on 31st July, 1998, at about 11.00 p.m. he

had visited the spot, along with his assitant

Devidas Umbre, to find out whether the security

agency persons and others were on duty or not and

if they were properly carrying out their duties.

He reached the spot at about 11.30 p.m. As the

cria279.00

workers posted told him that they were thirsty and

they did not have any water, PW-1 Dinesh Vairagade

had deputed a person with his car to go and bring

water from Bidkin. Two workers also told that they

would go and take dinner. He further deposed that

he himself, his assistant Devidas Umre and police

constable Gaikwad were sitting near the spot. Some

M.S.E.B. workers were sleeping and some were

waiting inside the tent, which was temporarily

constructed. He deposed that around 11.45 p.m.

accused No.1 came in car and alongwith him

accused Nos.2 to 4 also came there. Accused No.1

called police constable and questioned him as to

whether P.S.I. was there. Police constable Gaikwad

told that P.S.I. was not there. Accused No.1 told

one photographer to take photographs of the spot

from all directions. Accused No.1 questioned

police constable if he had arm, so also accused

No.1 told that he himself possessed arm.

Accordingly, accused No.1 removed revolver from

his pant pocket. Accused No.1 thereafter fired one

round in the direction of PW-1 Dinesh Vairagade.

cria279.00

Accused No.1 told other persons who were along

with him, to go and fill revolver with bullet and

come back. At that time police constable Gaikwad

told that if accused No.1 again fires then he

would also fire from his rifle. He deposed that

all the persons went to company and after 5-10

minutes returned and went away. He further deposed

that because of firing every one was tense.

Accused No.1 and other persons went away towards

Aurangabad. He told his other co-worker that he

would go to the police station and lodge the

complaint. He further deposed that he himself and

Umbre went to police station Bidkin and lodged

complaint. He deposed that he cannot identify the

revolver if shown to him.

. During the course of cross-examination,

PW-1 Dinesh Vairagade admitted that adjoining the

check-meter, the tent was installed and in front

of the tent, chairs were kept for security guard

and others. He admitted that after the alleged

incident, M.S.E.B. had disconnected supply to

cria279.00

Niranjan Company. He stated that he had visited

the spot for the first time after his posting at

Aurangabad and earlier also he had no occasion to

meet the accused or to visit the company of

accused No.1. He stated that police constable

Gaikwad was armed with rifle and he was carrying

the rifle with him. He stated that after the sound

of fire, about ten persons came out of the tent

but he did not narrate about the incident to the

said persons. He stated that at the time of

incident he was sitting on the chair kept in front

of the tent. He further stated that even after the

incident he was sitting on the same chair until

four persons had returned in his car. He stated

that he had visited the police station at about

00.15 to 00.30 hours midnight and immediately

lodged the complaint. He denied the suggestion

that as they were tampering with the check-meter

and accused were taking their photographs,

therefore he had lodged false complaint. He stated

that he has not mentioned in his complaint that

there were 8 to 10 persons inside the tent. He

cria279.00

denied that complaint Exhibit 29 was subsequently

prepared in connivance with the police. He further

stated that he was not knowing the names of the

accused persons at the time of the incident and

their names were disclosed to him by the persons

of M.S.E.B., who were present in the tent.

7. PW-2 Trimbak s/o Jaiwantrao Gaikwad, a

police constable, deposed that on 31st July, 1998

after 10.00 p.m. he was posted in front of

Niranjan Company near the check-meter. He deposed

that around 11.30 p.m. informant Vairagade had

come to the spot and after checking, he had sat on

the bench. He deposed that around 11.45 p.m.

accused and 10 to 15 workers came to the spot. PW-

2 Trimbak Gaikwad was questioned if P.S.I. was

posted, to which he had replied in the negative.

Accused No.1 questioned to PW-2 Trimbak Gaikwad if

he had a gun and he answered in the affirmative.

He further deposed that accused No.1 told that he

has revolver and thereafter fired one round

towards Vairagade. He deposed that thereafter he

cria279.00

told accused No.1 that if he again fires, PW-2

will also fire. Thereafter accused went away. He

identified the revolver when the same was shown to

him.

. During the course of cross-examination,

PW-2 Trimbak Gaikwad stated that he did not arrest

accused No.1 on the spot. He stated that earlier

he was never posted at Niranjan Company and it was

first time he was posted at that spot. He stated

that he never had any opportunity to visit

Niranjan Alloys Company for official or in

personal capacity. He admitted that earlier also

he had no occasion of meeting the accused for his

official or any personal work. He stated that

informant Vairagade had disclosed the names of

accused, hence he had stated their names in his

statement. He stated that he did not feel it

necessary to arrest the accused and take them to

police station.

8. Upon careful perusal of the evidence of

cria279.00

PW-1 and PW-2, it is clear that both these

witnesses were not at all knowing the accused

persons, and they have stated the names of the

accused persons on the say of workers of the

M.S.E.B.

9. Prosecution examined PW-3 Prabhakar s/o

Kisan Hiwale. This witness turned hostile and did

not support the prosecution case. He deposed that

he was working in M.S.E.B. since 1979. On 31st

July, 1998 he was posted in front of Niranjan

Company. The check-meter was fitted on the four

electric poles. Mr. Vairagade had arrived and was

sitting in front of the spot where check-meter was

installed. He deposed that he was sitting inside

the tent. He further deposed that at about 11.45

p.m. he heard a sound, they got up from the spot.

Thus, this witness did not support the case of the

prosecution as he deposed that he did not witness

the incident. Therefore this witness was cross-

examined by the A.P.P. with the permission of the

trial Court.

cria279.00

10. The prosecution examined PW-4 Sudarshan

s/o Bhaurao Chaudhari. He deposed that at the time

incident he was not present on the spot as at the

relevant time he had, along with other worker,

proceeded to Bidkin to get water and to take their

meals. He further deposed that they returned

around 00.15 hours when staff members started

telling him that there was firing.

11. Prosecution examined PW-5 Kacharu s/o

Supadu Gaikwad. This witness also turned hostile

and did not support the prosecution case. He

deposed that he was working in M.S.E.B. On 31st

July, 1998, he was posted in front of Niranjan

Alloy Company near check-meter. He deposed that

around 10 or 10.30 p.m. Mr. Vairagade had arrived

there. Police constable Gaikwad was also posted

there. He deposed that he heard sound and

immediately got up and sat in the tent. Thus, this

witness did not support the case of the

prosecution as he deposed that he did not witness

cria279.00

the incident.

12. PW-6 Satishkumar s/o Deorao Tak is the

Investigating Officer. He deposed about the manner

in which he has carried out the investigation.

During his cross-examination, PW-6 Satishkumar Tak

denied that complaint was given by Mr. Vairagade

on the next day morning. He further denied that

the endorsement on Exhibit 29 regarding

registration of crime was written by him ante-

timed. He admitted that he had seen the spot in

minute details but he did not find any marks of

firing. He admitted that accused No.3 was arrested

on 2nd August 1998 and the camera was attached on

4th August, 1998. He stated that there was no roll

in the camera. He stated that he has not mentioned

in the panchnama that the camera did not contain

the roll.

13. Upon careful perusal of the evidence of

the prosecution witnesses, it is clear that the

prosecution case rests upon the evidence of PW-1

cria279.00

and PW-2 only, and other prosecution witnesses

i.e. PW-3, PW-4 and PW-5 did not support the

prosecution case as they have stated that they

have not witnessed the incident of firing. PW-1 is

the informant. PW-6 Investigating Officer admitted

in his cross-examination that he minutely

inspected the spot of incident but he did not find

any marks of firing. The spot panchnama is at

Exhibit-22. Upon careful perusal of the spot

panchnama it clearly reveals that nothing

objectionable was found on the spot of incident.

Therefore, we find considerable force in the

argument advanced by the learned counsel appearing

for Respondent No.1 that if the incident of firing

had really been taken place, then the bullet or

the cap of the bullet should have been found on

the spot of incident. We further find considerable

force in the argument of learned counsel appearing

for Respondent No.1 that when it is the case of

the prosecution that bullet was fired at the

direction of tent, then there should have been

hole to the tent. But the prosecution has not

cria279.00

brought any evidence on record to show that there

was hole to the tent on the spot of incident.

14. The trial Court has observed that, in the

present case the conduct of the witnesses is very

material. According to the prosecution witnesses

after they heard the sound, they came out of the

tent, still the informant has not narrated the

incident to them. The trial Court further observed

that, even after the accused No.1 had fired at the

informant, the informant did not move from his

place, thereby further casting doubts regarding

truthfulness of the prosecution story. The trial

Court has further observed that accused No.1 had

license to carry 25 cartridges and when police had

attached the cartridges in the absence of accused

No.1 from his house, all 25 cartridges were found.

The trial Court has further observed that the said

fact clearly discloses that bullet must not have

been fired or there would have been one less

cartridge which is also circumstance disproving

the case of the prosecution. The trial Court,

cria279.00

after considering the evidence on record, rightly

observed that, if accused and informant never met

each other at any time earlier to the incident nor

they had any altercation or quarrel before the

incident, then there was no necessity or reason

for the accused to fire at the person of the

informant. After considering the entire evidence

brought on record by the prosecution, the trial

Court has observed that, it becomes substantially

doubtful whether accused had really fired bullet

or not and hence they deserve to be given benefit

of doubt and hence entitled to be acquitted for

the offence punishable under Section 307 of the

I.P. Code. Accordingly the trial Court has

acquitted the accused persons from the offences

with which they were charged.

15. After considering the entire evidence

brought on record by the prosecution, we are

convinced that the finding recorded by the trial

Court are in consonance with the evidence brought

on record. There is no perversity as such. The

cria279.00

view taken by the trial Court is plausible. On

independent scrutiny of the evidence also, we find

that the evidence of the prosecution witnesses

i.e. PW-1 Vairagade and PW-2 Gaikwad is not

reliable, as they have stated that before the

incident in question, they never met with accused

persons and prior to the incident they were not

even knowing the names of the accused, and they

have stated the names of the accused after getting

information from the M.S.E.B. workers. PW-3

Prabhakar, and PW-5 Kacharu Gaikwad had not at all

supported the prosecution case as they have stated

that they have not witnessed the incident. PW-4

Sudarshan Chaudhari has also not supported the

prosecution case and stated in clear terms that at

the time of incident, he was not present on the

spot of incident. PW-6 Satishkumar Tak,

Investigating Officer, admitted during the course

of his cross-examination that he had inspected

the spot of incident minutely but he did not find

any marks of firing on the spot of incident.

Therefore considering the evidence of the

cria279.00

prosecution witnesses, it is doubtful whether the

incident in question had really taken place or

not. In that view of the matter, we are unable to

persuade ourselves to cause interference in the

order of acquittal.

16. The Supreme Court in the case of

Muralidhar alias Gidda and another Vs. State of

Karnataka1 in para 12 held thus:-

12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1, Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637, Atley Vs. State of U.P., AIR 1955 SC 807, Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, Balbir Singh Vs. State of Punjab, AIR 1957 SC 216, M.G.Agarwal Vs. State of Maharashtra, AIR 1963 SC 200, Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450, Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793, Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424, Khem Karan Vs. State of

1. 2014 [4] Mh.L.J.[Cri.] 353

cria279.00

U.P., [1974] 4 SCC 603, Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288, Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228, K.Gopal Reddy Vs. State of A.P., [1979] 1 SCC 355, Tota Singh Vs. State of Punjab, [1987] 2 SCC 529, Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677, Sambasivan Vs. State of Kerala, [1998] 5 SCC 412, Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85, Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470, C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1, State of Karnataka Vs. K.Gopalakrishna, [2005] 9 SCC 291, State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate Court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

cria279.00

(iii) Though, the powers of the appellate Court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate Court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court.

[Underlines added]

cria279.00

17. In the light of discussion herein above,

we are of the opinion that there is no merit in

the Appeal filed by the State. The Criminal Appeal

stands dismissed. Bail Bonds, if any, of

Respondent Nos.1, 2 and 4, stand cancelled.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUN17