Barsai Ramsu Gawade (In Jail) vs State Of Maharashtra, Through ...
2021 Latest Caselaw 11097 Bom

                                                                    CR APPEAL 318.14 S- Barsai
     Gawade 19-8-21.odt
                                                   1

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

                           CRIMINAL APPEAL NO. 318 OF 2014


     Appellant :               Barsai Ramsu Gawade,
                               aged about 43 years, Occ. Agriculturist,
                               R/o, Gurrekasa, Tahsil Dhanaora,
                               District Gadchiroli.


                                             ...VERSUS...

     RESPONDENT:                    The State of Maharashtra,
                                    Through Police Station Officer,
                                    Police Station Dhanora,
                                    District Gadchiroli.
     ---------------------------------------------------------------------------------
                       Mr. V.N.Morande, Advocate for appellant.
                       Mr. S.M.Ukey, Addl. Public Prosecutor for Respondent.
     ---------------------------------------------------------------------------------
                                CORAM : SMT. SWAPNA JOSHI
                               AND
                                                AVINASH G. GHAROTE, JJ.

                                                DATE          : 17/08/2021.
     (Per: Avinash Gharote J)


     1]                Heard Mr. Morande, learned counsel for the appellant

     and Mr. Ukey learned APP for the respondent.



     2]                The present appeal under Section 374 of Criminal

     Procedure         Code       challenges     the     judgment        and      order     dated



                                                           CR APPEAL 318.14 S- Barsai
     Gawade 19-8-21.odt

05/04/2014, passed by the learned Sessions Judge, Gadchiroli, in

Sessions Case No. 126 of 2011, convicting the appellant for the

offence punishable under Section 302 r/w 120(B) of the IPC,

sentencing him to suffer imprisonment for life and a fine of

Rs. 1000/-, in default of payment of which, to suffer further S.I. for

one month.

3] The facts of the present case are as under;

On 25.06.2011, one Ramchandra Bahirwar who was

having a welding shop in his house at Mouza-Murumgaon, Tah.

Dhanora, District-Gadchiroli, was called from his house by the

appellant. When they were talking outside the house, three to four

unknown persons were alleged to be present along with the

appellant. The talk is alleged to have gone for 10 to 15 minutes, after

which one of the persons, is claimed to have shot dead the said

Ramchandra, whereupon the appellant and the other persons

standing there ran away. It is further alleged that while running

away, the other persons were shouting/giving slogans, "lal salam

zindabad, mao-wadi zindabad". It was alleged, that these four

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

persons were naxalites and had caused the death of Ramchandra in

the manner stated above. Ramchandra, was taken to the hospital at

Morangaon by his son Ganesh and from there to the Hospital at

Dhanora, but unfortunately he passed away on the way. On

25.06.2011, a report came to be lodged at Police Station Dhanora

regarding the said incident and offence was registered against the

appellant and 3-4 unknown persons at Dhanora Police Station. P.S.I.

Devre - PW-7 is claimed to have done the investigation and

consequently had arrested the appellant and the original accused 2 to

4, on the charge of having committed a criminal conspiracy, under

section 120-B of the IPC for causing the death of Ramchandra.

4] On 30.8.2012, a charge was framed at Exh.34 by the

Additional Sessions Judge, Gadchiroli, against the appellant and

accused 2 to 4 under Section 302 r/w 120(B) and 34 of the IPC and

so also Section 3 and 25 of the Indian Arms Act. The prosecution

examined 10 witnesses. It is noteworthy to state, that none of the

witnesses can be said to be an eye-witness, as none of them had seen

the shot being fired, which resulted in the death of Ramchandra.

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

The time of the incident is stated to be 1.35 p.m. at Mouza

Murumgaon, Tah. Dhanora, Dist. Gadchiroli.

5] The learned Sessions Court by the impugned judgment

dated 5.4.2014, acquitted the accused 2, 3 and 4 of the offence

punishable under Section 302 and 120B r/w 34 IPC and under

Section 3 and 25 of the Arms Act, however, convicted the

appellant/accused No.1 of the offence punishable under Section 302

r/w 120B IPC.

6] Mr. Morande learned counsel for the appellant, submits

that the learned Sessions Judge having acquitted the accused 2 to 4

of the offence punishable under Section 302 and 120B r/w 34 IPC

and under Section 3 and 25 of the Arms Act, it was impermissible for

him to have convicted the appellant/accused No.1 of the offence

punishable under Section 302 r/w 120B IPC, for the reason that for a

criminal conspiracy, there is a requirement of meeting of the minds of

more than one person and therefore, the requirement of

Section 120A of the IPC were clearly not established, vis-a vis the

appellant, in support of which learned counsel places reliance upon

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

Topandas vrs. State of Bombay [AIR 1956 SC 33]. He further submits

that even otherwise, no other action is attributable to the appellant,

except that he had called Ramchandra out of the house and was

talking to him, which cannot be a ground to convict him of an

offence under Section 302 IPC.

7] Learned APP Mr. Ukey vehemently opposes the

contention on the ground that the involvement of the appellant in the

offence according to him is apparent from the fact that it was the

appellant who had called Ramchandra out of the house, which

resulted in the demise of Ramchandra. He therefore submits, that the

offence under Section 302 of the IPC has been made out. In so far as

the plea regarding Section 120B of the IPC is concerned, learned APP

submits that the conduct of the appellant in running away after the

shot was fired, which resulted in the death of Ramchandra, would be

enough to demonstrate his being part of the criminal conspiracy to

eliminate Ramchandra.

8] We have given our anxious consideration to the rival

contentions. The issue of criminal conspiracy, has to be viewed in

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

light of the language of Section 120-A of IPC, which requires the

presence of two or more persons, and the meeting of minds of such

two or more persons, to agree to do an illegal act. In the instant case,

it is an admitted position, that the accused 2 to 4, who have been

accused to have conspired with the appellant/accused no. 1, have

been acquitted of the charge under Section 120B of IPC, which leaves

the appellant/accused No. 1 alone in the arena, in view of which the

requirement of law as contemplated under Section 120-A of the IPC,

is clearly not satisfied. In Topandas (supra), while considering the

definition of Criminal Conspiracy as occurring in Section 120-A of

IPC, it has been held that by the terms of the definition itself, there

ought to be two or more persons who must be parties to such an

agreement and it is trite to say that one person alone can never be

held guilty of criminal conspiracy for the simple reason that one

cannot conspire with oneself. In the facts of that case, which were

identical to the present one, it was held that if therefore four named

individuals were charged with having committed the offence under

Section 120-B IPC and if three out of these four were acquitted of the

charge, the remaining accused could never be held guilty of the

offence of criminal conspiracy. The learned Sessions Judge has

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

unfortunately lost sight of the requirement of Section 120-A of the

IPC, requiring the presence and meeting of minds of two or more

persons, for bringing home the offence under Section 120-B of the

IPC. Thus, in view of the language of Section 120-A of IPC, as well as

what is held in Topandas (supra), the conviction of the appellant

under Section 120-B of the IPC cannot be sustained.

9] In so far as the charge under Section 302 of the IPC, is

concerned, in respect of the appellant, PW-2/Neeraj Laxmilalji Parakh

says that he had learnt that some naxalite had fired bullet on

Ramchandra. Dharamsingh Hirasingh Sangodia/PW-3 also says that

after hearing the noise of bursting in front of the shop of

Ramchandra, he had come out of his shop. Though he says that he

had seen that someone had fired bullet on Ramchandra, he says that

he had not seen the assailant. Gajanan Mathu Chanap/PW-4, who

works in the shop of Neeraj Parakh (PW-2) says that he had seen four

persons had come to the shop of Ramchandra and were talking with

him, he heard sound of bursting and those persons running away,

without naming a single person, nor any of the accused 1 to 4.

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

10] Laxmi Narayan Ambatwar / PW-5 says that he was

present in the house of Ramchandra at the time of the incident,

wherein 4 persons were present along with one lady. When he was

talking with Ramchandra inside the house, at that time those

persons had called Ramchandra out of the house (he does not say

that it was the appellant who had called Ramchandra out of the

house), and thereafter he heard sound of firing. After coming out, he

saw that Ramchandra had received bullet on his chest and abdomen.

He also says, he had seen four persons, one lady and one person by

name Gawade running from there, who were shouting "lal salam

zindabad" while running from the spot and one of them was carrying

a pistol. Though he states that he was able to identify the persons if

shown to him, no such persons has been identified by him. Leelawati

Ramchandra Bairwar/PW-10, is the only person, who has seen the

appellant Barsai come inside the house and called her husband out of

the house prior to which she states that four persons had already

come to visit her husband and were sitting outside the house. She

claims to have heard the noise of the bullet being fired, whereupon

she and her son, had rushed outside and had seen Ramchandra with

bullet wounds and so also the four persons who were present in the

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

shop running away, which included the appellant as well as the

accused 2 to 4. She also claims that the accused No. 4 was holding a

bag in a hand which she had left, which later on was claimed to have

found containing bullets. This is the nature of evidence which has

come on record.

11] PW-6, is the Head Constable attached to P.S Dhanora

who has recorded the oral report given by Ganesh Bairwar. PW-7 is

PSI Yogesh Devre, who had investigated the crime. PW-8 is Doctor

Milind Ramteke, who had conducted the Post Mortem. PW-9 is

Narayan Bachalwar, ASI, who had prepared the inquest panchnama,

sent the body of Ramchandra for post mortem, given duty pass,

Exh.99; letter to Medical Officer for conducting post mortem -

Exh. 94, compliance report Exh. 100, receipt regarding handing over

of body of Ramchandra to relatives - Exh. 101.

12] There is no overt action attributed, to the appellant, in

the matter of causing the death, except for the presence of the

appellant at the house of deceased Ramchandra and in running away

after the bullet was fired. The learned Sessions Judge has entered

CR APPEAL 318.14 S- Barsai Gawade 19-8-21.odt

into the realm of conjecture in finding that the appellant ought to

have run in a direction away from the one in which the assailants

ran, which is no ground in law to base a conviction. These two

circumstances of their own would not be enough, to bring the charge

under Section 302 of the IPC, home to the appellant, which is more

so in view of the fact that the charge of criminal conspiracy against

the appellant cannot be sustained in law. That being the position, the

impugned judgment and order sentencing the appellant for the

offence under Section 302 r/w 120(B) of the IPC cannot be sustained

and the conviction is accordingly quashed and set aside. The

appellant is already on bail, by the order of this court dated

23.9.2014, his bail bond stands cancelled.

                         JUDGE                            JUDGE


     Rvjalit