Arjun S/O Arun Sheel And Another vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 8215 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.348 OF 2016


 1) Mr. Arjun s/o Arun Sheel,
     Age 31 years, Occupation - Labour,
     R/o Chankainagar, Gadchiroli. 

 2) Mr. Raju s/o Vitthal Kantakwar,
     Age 61 years, Occupation - Labour, 
     R/o Chankainagar, Gadchiroli.                                ....    APPELLANTS


                     VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 Police Station Armori, 
 District Gadchiroli.                                             ....    RESPONDENT

 ______________________________________________________________

            Shri Rajnish Vyas, Advocate for the appellants, 
          Smt. M.H. Deshmukh, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 13 OCTOBER, 2017.

th

ORAL JUDGMENT :

The appellants are aggrieved by the judgment and order

dated 17-8-2016 in Sessions Trial 21/2011 delivered by the learned

Sessions Judge, Gadchiroli, by and under which the appellants are

convicted for offence punishable under Section 353 read with Section

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34 of the Indian Penal Code and are sentenced to suffer rigorous

imprisonment for three years and to payment of fine of Rs.1,000/-, and

are further convicted for offence punishable under Section 65(a)(d) of

the Maharashtra Prohibition Act (hereinafter referred to as the "Act)

and are sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs.500/- and are further convicted for offence

punishable under Section 83 of the Act and are sentenced to suffer

rigorous imprisonment for two years and to payment of fine of

Rs.500/-.

2. The accused were prosecuted for offences punishable

under Sections 307, 353, 332, 427 read with Section 34 of the Indian

Penal Code and under Section 65(a)(d) and 83 of the Act.

3. The gist of the prosecution case is that on 23-9-2010,

whilst travelling by green colour maruti car bearing registration

No.MH-31/BB-5356, the accused, in furtherance of their common

intention, attempted to commit murder of informant Narendra

Bambole and other police personnel by deliberately giving a dash to the

police vehicle and in the process causing damage to the vehicle of the

police department. The case of the prosecution is that the accused

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were found transporting twenty boxes of illicit liquor.

4. The case of the prosecution is that the informant Narendra

was attached to Police Station Armori as Naik Police Constable. He

was on patrolling duty alongwith Police Inspector Mane, other police

staff and two home guards on Vainganga River Bridge on 23-9-2010.

At 6.30 p.m. or thereabout one green colour maruti 800 car was

noticed approaching from Bramhapuri in high speed. The patrolling

squad noticed some cartons of liquor in the car and gave a chase in the

police gypsy. The maruti car turned back towards Armori in high speed

and again took a turn from Hitkarni School towards Bramhapuri. The

informant who was driving the police gypsy overtook the maruti car.

However, the maruti car deliberately dashed against the police gypsy

due to which both the police gypsy and the maruti car turned turtle.

The police personnel and the accused received injuries in the incident

and were sent to Sub-District Hospital, Armori. On the basis of the

report of Narendra, first information report for offence under Section

307 read with Section 34 of the Indian Penal Code and Sections 65(a)

(d) and 83 of the Act was registered vide Crime 53/2010.

5. The spot panchanama was conducted, the boxes of illicit

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country liquor were seized vide Exhibit 31, statements of witnesses

were recorded and on completion of investigation, charge-sheet was

filed in the Court of Judicial Magistrate First Class, Armori who

committed the case to the Sessions Court. The Sessions Court framed

charge vide Exhibit 23. The accused abjured guilt and claimed to be

tried. The defence of the accused was that it was the police gypsy

which dashed against the maruti car in which the accused were

travelling and that the accused were not responsible for the accident.

6. The learned Counsel for the accused Shri R.R. Vyas

submits, and not without justification, that even if the evidence of the

prosecution is accepted at face value, offence punishable under Section

353 read with Section 34 of the Indian Penal Code is not established.

The learned Counsel invites my attention to the testimony of the

informant Shri Narendra Bambole and in particular the following

portion of the cross-examination :

"We had chased Maruti car as we suspected that vehicle. We were pressurizing driver of Maruti car to stop the same. For that purpose, we were also threatening him to fire on them. At that time, dark had fallen. Although we had given dash by our gypsy car to Maruti car, driver of Maruti car was not halting car. This process was going on from Vainganga river bridge upto village Arsoda. When driver of Maruti car had taken car from Armori towards Bramhapuri, we were trying to overtake the vehicle. At that time, driver of Maruti car

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was not allowing us to overtake the vehicle. It is not correct to say that at that time of overtaking of Maruti car the tyre of gypsy vehicle was burst and hence, our gypsy car had turned down. It is not correct to say that driver of Maruti car had not identified our vehicle. It is not correct to say that hence, due to fear the driver of Maruti car was not halting car. It is not correct to say that while overtaking Maruti car, our gypsy vehicle had gone below the road and hence, turned down."

7. Section 353 of the Indian Penal Code reads thus :

"353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

8. Shri R.R. Vyas, learned Counsel for the accused is justified

in contending that the basic ingredients constituting offence punishable

under Section 353 of the Indian Penal Code are not established by the

prosecution. The evidence of the informant who was driving the police

gypsy would suggest that the maruti car in which the accused were

travelling was being chased by the police gypsy. The police personnel

were threatening the driver of the maruti car that the police personnel

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would open fire. It is admitted that it was dark. It is further admitted

by the informant that it was maruti gypsy which initially dashed the car

in which the accused were travelling. It is true that the witness denies

the suggestion that the accident occurred as the tyre of the maruti

gypsy burst. Be that as it may, it is more than apparent, that even if

the entire evidence is taken at face value, there was neither an assault

nor use of criminal force with the mens rea or the intention of

preventing or deterring the public servant in the execution of duty as

such public servant. The cross-examination of the driver of the police

gypsy creates sufficient doubt about the veracity of the prosecution

case that the car in which the accused were travelling deliberately

dashed the police gypsy. The finding of guilt recorded by the learned

Sessions Judge is manifestly unsustainable.

9. In so far as offences punishable under Sections 65(a)(d)

and 83 of the Act are concerned, the learned Additional Public

Prosecutor Smt. Mayuri Deshmukh in all fairness did not dispute the

submission of the learned Counsel for the accused that although the

alleged incident occurred at 6.30 p.m. in the evening on 23-9-2010,

the seizure of the illicit liquor cartons was shown to have been made at

6.40 a.m. in the morning on 24-9-2010. The vehicle from which the

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seizure is shown was lying unattended and abandoned between 6.30

p.m. on 23-9-2010 and morning hours on 24-9-2010.

10. In this view of the matter, I have no hesitation in holding

that the alleged seizure of the illicit liquor cartons from the maruti car

in which the accused were travelling is of no significance. The alleged

seizure from the car which was unattended and abandoned for more

than twelve hours must be discarded as of no relevance or reliability.

The conviction for offence punishable under Sections 65(a)(d) and 83

of the Act deserves to be set aside.

11. The judgment and order dated 17-8-2016 delivered by the

learned Sessions Judge, Gadchiroli in Sessions Trial 21/2011 is set

aside. The accused are acquitted of the offence punishable under

Section 353 read with Section 34 of the Indian Penal Code and

Sections 65(a)(d) and 83 of the Act. Fine paid by the accused, if any,

be refunded to them. Bail bonds of the accused shall stand discharged.

The appeal is allowed accordingly.

JUDGE

adgokar