Bombay High Court
Magesh Sambhaji Pawar And Ors vs The State Of Maharashtra on 15 January, 2018
Bench: Anuja Prabhudessai
8 apeal 1344-08.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 1344 OF 2008
1. Mangesh Sambhaji Pawar
Age 26 years, Occ: Business
res. At 38/1, Parvati Darshan,
Pune.
2. Ravindra Machindra Chudhari,
Age 22 years, Occ: Education
R/at. Indrakut Nagari,
Flat No.26, Kothrud,
Pune 26.
3. Sachin Prakash Sonawane
Age 26 yrs, Occ: Rickshaw driver,
res. At Ghorpadi peth, Pune
all serving sentenc at Yerwada
Central Prison Pune.
..Appellants
v/s.
The State of Maharashtra
through Govt. Public Prosecutor Office ..Respondents
Mr. Priyal Sarda for the Appellant No.1.
Mrs.J.S.Lohakare APP for the Respondent/State.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : JANUARY 15, 2018.
ORAL JUDGMENT.
1. The appellants, who shall be hereinafter referred to as the
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accused, have challenge the judgment dated 29.11.2008, in Special
Sessions Case No.36 of 2007. By the impugned judgment the
learned Addl. Sessions Judge has convicted the accused for an
offence under Section 382 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for a term of five years and to pay
fine of Rs.5000/- each, in default to undergo rigorous imprisonment
for one month.
2. The case of the prosecution is that on 8.2.2006 PW1-Pandurang
Yadav had gone to Mulshi Dam by an Alto Car of Tanaji Yadav. On
the same day at about 8.30 p.m. at village Paud, the accused and two
others viz. Sachin Dhumal and Yogesh Sonawane had committed
murder of Mahesh Bugade and fled away from the place of the
incident. Pursuant to the first information report lodged by Ravindra
Rasal Crime No.13 of 2006 under Section 302 of IPC was registered
against the accused and ors. at Paud Police station for committing
murder of Mahesh Bugade. It is alleged that when the accused
reached near Mulshi Dam, they stopped the Alto car which was
driven by Pandurang (PW1). The accused pulled him out of the car
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by threatening him at the point of a revolver and went away with the
car. It is alleged that there was a camera and two purses containing
gold rings of 5 grams each and cash of Rs.2000/-, in the said car.
PW1 lodged a report, pursuant to which Crime No.14 of 2006 was
registered at Lonawala Police Station for offence under Section 382
r/w. 34 of IPC and the same was transferred from Lonawala to Paud
Police Station. Both these crimes were separately investigated and
upon completion of investigation two separate chargesheets were
filed, and both cases were committed to the Court of Sessions at
Pune.
3. By judgment dated 29/11/2008 the learned Ad-hoc Additional
Sessions Judge, Pune, convicted the accused in Sessions Case No. 355
of 2006 for offence under Section 302 r/w. 34 of IPC. Being
aggrieved by the said judgment the accused preferred Criminal
Appeal No.1333 of 2008. By a separate judgment i.e. the impugned
judgment dated 29.11.2008,in Sp.S.C. Case No. 36 of 2007 the
accused have been convicted for the offence under Section 382 of IPC
and sentenced as stated above. Aggrieved by this conviction and
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sentence the accused have filed the present appeal.
4. It may be mentioned that Criminal Appeal No. 1333 of 2008
filed by the aforesaid accused challenging their conviction under
Section 302 r/w. 34 of IPC has been allowed by the Division Bench of
this Court by judgment dated 17.6.2015. The Division Bench of this
Court after considering the evidence on record has held that the only
eye witness examined by the prosecution has not supported the case
of the prosecution. It was further held that the prosecution has also
failed to prove the recovery of empty cartridges and pistols. The
Division Bench of this Court has also held that in the absence of the
direct evidence, no conviction could be passed on the basis of the
ballistic report and the finger print report.
5. I have gone through the evidence of PW1 with the assistance of
the learned Counsel for the appellant. A plain reading of his
evidence clearly indicates that the PW1 had not identified the
accused persons. A perusal of the FIR also reveals that he had also
not given description of the persons involved in the crime. No
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identification parade was held and consequently the identity of these
accused persons was not established.
6. The only other piece of evidence relied upon by the prosecution
is the ballistic report. The prosecution has examined PW8 to prove
that the finger prints of the accused were found on the rear glass of
the car. The witnesses i.e. PW4 and PW5, in whose presence the
finger prints were allegedly taken have not supported the case of the
prosecution. There is also no evidence to prove that the accused had
used any weapon. It is also pertinent to note that the prosecution has
relied upon the same evidence in the other crime under Section 302
IPC. The Division Bench of this Court, while acquitting the accused
of the offence under Section 302 IPC vide judgment dt,17th June,
2015 has observed that the prosecution had failed to prove the
connecting link between the offence and the recovery of bullet,
pistol, finger prints etc Hence the Division Bench had not relied
upon the said ballistic report. It was also observed that in the
absence of substantive evidence, the accused could not be convicted
solely on the basis of corroborative evidence.
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7. In the instant case, as stated earlier, there is no evidence to
prove that the accused had pulled PW1 out of the car and that he had
fled away with the car. In the absence of such evidence, they can't be
held guilty solely on the basis of the expert evidence /ballistic report.
8. In the light of the above, the conviction and sentence cannot be
sustained. The appeal is allowed. The accused are acquitted of the
offence under Section 382 IPC.
. Fine amount, if deposited, be refunded to the accused.
(ANUJA PRABHUDESSAI, J.)
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