Bombay High Court
Raju @ Mukesh S/O. Punamchand ... vs State Of Maharashtra Thr. Police ... on 1 July, 2022
Bench: S.B. Shukre, G. A. Sanap
1 201-J-APPEAL-439-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.439 OF 2016
APPELLANT : Raju @ Mukesh S/o. Punamchand Dangre
(Patel), Age : Now running 39 years,
R/o. Bagmar, Near Lord Ram Temple,
Tah. Pandhana, Dist. Khandwa (M.P.)
(At Present District Prison Amravati
Since 2011).
VERSUS
RESPONDENT : State of Maharashtra,
Through Police Station Officer,
Police Station Malkapur City,
Dist. Buldana.
WITH
CRIMINAL APPEAL NO.440 OF 2016
APPELLANT : Dipak @ Golu Ananda Tayde,
Aged about 30 years, Occ. : Nil,
R/o. Sindhi Basti, Burhanpur,
Madhya Pradesh.
Presently at Amravati Central Jail.
VERSUS
RESPONDENT : The State of Maharashtra,
Through P.S.O., Malkapur City,
District Buldhana.
-----------------------------------------------------------------------------------
Shri A.K.Bhangde, Advocate for appellant in Cri. Appeal No.439/2016.
Shri R.R.Prajapati, Advocate for appellant in Cri. Appeal No.440/2016.
Shri A.S.Fulzele, Additional Public Prosecutor for respondent-State.
-----------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE &
G. A. SANAP, JJ.
2 201-J-APPEAL-439-16.odt
DATE OF RESERVING JUDGMENT : 09/06/2022
DATE OF PRONOUNCING JUDGMENT : 01/07/2022
JUDGMENT : (PER G. A. SANAP, J.)
1. These two appeals arise out of the Judgment in
Sessions Trial No.86/2012 and therefore, the same are being
disposed of by common Judgment. The appellants have
challenged the Judgment and order dated 13/04/2016 passed
by the learned Additional Sessions Judge, Malkapur, whereby
the learned Additional Sessions Judge convicted and sentenced
the appellants for the offences punishable under Sections 302,
307, 353, 201 of the Indian Penal Code and under Section 25
of the Arms Act, 1959. The sentences awarded to them are as
follows :-
i] Under Section 302 of the Indian Penal Code, the
appellants were sentenced to suffer Rigorous Imprisonment for
life and to pay fine of Rs.1,000/- each, and in default, to suffer
Rigorous Imprisonment for six months.
3 201-J-APPEAL-439-16.odt
ii] Under Section 307 of the Indian Penal Code, the
appellants were sentenced to suffer Rigorous Imprisonment for
seven years and to pay fine of Rs.1,000/- each, and in default,
to suffer Rigorous Imprisonment for six months.
iii] Under Section 353 of the Indian Penal Code, the
appellants were sentenced to suffer Rigorous Imprisonment for
one year and to pay fine of Rs.1,000/- each, and in default, to
suffer Rigorous Imprisonment for six months.
iv] Under Section 201 of the Indian Penal Code, the
appellant Raju was sentenced to suffer Rigorous Imprisonment
for three years and to pay fine of Rs.500/-, and in default, to
suffer Rigorous Imprisonment for six months.
v] Under Section 25 of the Arms Act, 1959, the appellant
Raju was sentenced to suffer Rigorous Imprisonment for one
year and pay fine of Rs.500/-, in default, to suffer Rigorous
Imprisonment for six months.
2. Dipak @ Golu Ananda Tayade was arrayed as
accused No.1 (hereinafter referred to as 'Golu'). Raju @
Mukesh Punamchand Dangre (Patel) was arrayed as accused
No.4 (hereinafter referred to as 'Raju'). The remaining accused
namely accused Nos.2 and 3 have been acquitted by giving the
4 201-J-APPEAL-439-16.odt
benefit of doubt. The State has not preferred appeal against the
order of their acquittal.
3. A crime bearing No.5/2011 for the commission of
offence under Section 307 read with Section 34 of the Indian
Penal Code and under Section 3/25 of the Arms Act, 1959
was registered at Kholapuri Gate Police Station, Amravati
against Golu and others. PW-2 Sanjay Ramrao Deshmukh
(P.I.) was conducting the investigation of the said crime. The
wanted accused in the said crime Rahul Rajput and Lokesh
Thakur were arrested on 14/01/2011 from Burhanpur and
brought to Amravati. PW-2 Sanjay Deshmukh received the
information that the wanted accused Golu was residing at
Malkapur City. PW-2 Sanjay Deshmukh on the basis of this
information decided to proceed to Malkapur. On 15/01/2011
at about 4.45 a.m., PI Sanjay Deshmukh, deceased PSI Sanjay
Chaugule, NPC Sanjay Patinge, PC Amar Baghel, PC Vijay
Gaharwal, HC Bhaurao Kalane along with the arrested accused
Rahul Rajput left Amravati for Malkapur in search of
5 201-J-APPEAL-439-16.odt
absconding accused Golu. The arrested accused Rahul Rajput
was with them because he was knowing Golu. Rahul Rajput
informed PW-2 Sanjay Deshmukh that Golu might be found
at Malkapur or Bhusawal. The investigation team reached
Malkapur at 12.00 noon. The location of the appellant Golu
was traced out with the help of his sim card. The sim card used
by Golu was in the name of Sandip Jaware. The investigation
team reached place of Sandip Jaware. The enquiry made with
Sandip Jaware led the investigation team to "Comprint
Computers", Shop of one Sancheti. They got the information
that Golu was residing at Pant Nagar. They took search at Pant
Nagar. Their search revealed that the person possessing the
said sim card had recharged his sim card at the Grocery Shop
of Rajesh Nimbolkar. Rajesh Nimbolkar on being questioned
took them to Pant Wada in Pant Nagar, where the accused
Raju was earlier residing. The accused Raju was not found
there. Rajesh Nimbolkar gave a call to one Fulsing and called
him to that place. Fulsing told the police party that accused
Raju who was earlier residing at Pant Nagar, has shifted his
6 201-J-APPEAL-439-16.odt
residence in a rented premises belonging to one Rashid Coolie.
The police got information that the accused Golu had taken
shelter with Raju.
4. It is the case of the prosecution that Fulsing took
PW-2 Sanjay Deshmukh and other members of the
investigation team to the house of Rashid Coolie. At the house
of Rashid Coolie, they found that the door of the house was
closed from inside. PW-2 Sanjay Deshmukh and other
members of the investigation team at about 11.30 p.m.
knocked at the door. They told the occupants to open the door
and come out. The occupants did not open the door. PW-2
Sanjay Deshmukh and other members of the team could make
out that the men and women were inside the house. They
heard the sound of loading of bullets in the revolver. They also
heard that the women were instigating the men to kill the
police. The deceased PSI Sanjay Chaugule therefore, latched
the door from outside and went behind the compound to
ensure their safety. They took position there. PW-2 Sanjay
7 201-J-APPEAL-439-16.odt
Deshmukh (P.I.) informed Amravati Police Headquarter to
provide the additional force. It is the case of the prosecution
that when the team was keeping watch, they saw that the
persons inside the house bent the latched door and came out.
They started firing on the police. One bullet hit PSI Chaugule
in his stomach. PSI Chaugule informed this fact to Sanjay
Deshmukh (P.I.). The accused started running. Sanjay
Deshmukh, P.I. took the revolver of PSI Sanjay Chaugule and
fired two shots in the direction of the accused. However, the
same missed the target. They took PSI Chaugule to the side
and within 5 minutes, ambulance came there. They took him
to the hospital of Dr. Kolte. Dr. Kolte on examination declared
PSI Chaugule dead. The accused fled from the spot.
5. PW-2 Sanjay Deshmukh lodged the report. On the
basis of his report Crime No.8/2011 came to be registered
against the accused persons. Mr. Khan, Police Inspector
attached to Malkapur Police Station conducted initial
investigation. He drew the spot panchnama and seizure
8 201-J-APPEAL-439-16.odt
panchnama of the articles found on the spot. Further,
investigation was conducted by PW-17 Shriniwas Patil (P.I.).
Shriniwas Patil (P.I.) arrested Golu and two women accused.
He recorded the statements of the witnesses. He forwarded the
articles to the Chemical Analyzer for examination. After
completion of the investigation, he filed charge sheet on
11/04/2011 in the Court of Judicial Magistrate, First Class,
Malkapur.
6. The accused Raju was formally arrested on
04/03/2011 by handing over letter to Chief Judicial
Magistrate, Khandawa, Madhya Pradesh as he was lodged in
Central Prison, Khandawa, Madhya Pradesh. The
Investigating Officer made efforts to obtain the custody of
Raju. The efforts made by Investigating Officer yielded result
on 01/02/2012 and he obtained custody of Raju. After his
arrest, he conducted the investigation. The accused Raju led
the Investigating Officer to the place and person to whom he
had sold the revolver. After completion of the investigation, he
9 201-J-APPEAL-439-16.odt
filed supplementary charge sheet.
7. The learned Additional Sessions Judge framed the
charge against the appellants and remaining two accused. They
pleaded not guilty. Their defence is of total denial. The
prosecution examined 19 witnesses to prove the guilt against
the accused. The prosecution relied upon the number of
documents. The learned Additional Sessions Judge convicted
and sentenced Golu and Raju as above and acquitted two
women accused. Being aggrieved by the impugned Judgment
and order, the appellants are before this Court by filing their
separate appeals.
8. We have heard learned Advocates appearing for the
accused Golu and Rajesh. We have heard learned Additional
Public Prosecutor for the State. We have perused the record
and proceedings.
10 201-J-APPEAL-439-16.odt
9. Shri R. R. Prajapati, learned Advocate appearing for
the appellant Golu submitted that there is no evidence to
prove the charge against the appellant. Learned Advocate
further submitted that there is no cogent and reliable evidence
to prove that the accused Golu with remaining three accused
were inside the house and after the incident of firing, they
were seen on the spot by the witnesses. Taking his argument
further on this point, learned Advocate submitted that in the
First Information Report lodged by PW-2 Sanjay Deshmukh
and the statements of the witnesses PW No.5 - Sanjay Patinge
and PW-14 Sanjay Gaharwar, there was no mention about the
existence of electric light around the spot of incident. Learned
Advocate submitted that PW Nos.2, 5 and 14 at the time of
evidence, for the first time stated that there was electric light
around the spot and in the said light, they saw the appellant
Golu and his companion on the spot. It is the further
submission of the learned Advocate that the case of the
prosecution that these very persons were present inside the
house becomes doubtful and unbelievable. Learned Advocate
11 201-J-APPEAL-439-16.odt
further submitted that the identification parade conducted to
establish the identity of the accused Golu and Raju is not
reliable. Learned Advocate pointed out that the prosecution
has only examined PW-13 Amol Kumbhare (Tahsildar) to
prove the test identification parade. It is submitted that the
panch witnesses who were independent witnesses, have not
been examined. It is, therefore, submitted that the reliance
cannot be placed on the evidence of PW-13 - Amol Kumbhare
and the documentary evidence pertaining to the test
identification parade. Learned Advocate pointed out that the
accused Golu was not produced before the Court on the date
of recording the evidence of PW-2. It is submitted that the
identification of the accused No.1 through PW-2 in the Court
has not been established.
10. Shri A. K. Bhangde, learned Advocate for the
appellant Raju, in addition to the above submissions,
submitted that the evidence of PW Nos.2, 5 and 14 is not
credible and acceptable inasmuch as there are material
12 201-J-APPEAL-439-16.odt
omissions and inconsistencies in their evidence on the material
aspects. Learned Advocate submitted that the eye-witnesses
have not specifically stated as to which accused was having the
pistol and fired the bullets. In the submission of the learned
Advocate, if the incident as narrated by the eye-witnesses had
occurred, then in that event, they ought to have noticed this
material fact. Learned Advocate pointed out that in the First
Information Report, the description of the accused persons has
not been provided. Learned Advocate submitted that the
evidence of PW-2 - Sanjay Deshmukh on the point of
identification of the accused on the spot cannot be accepted
inasmuch as he did not at the first instance identify the accused
Raju in the test identification parade. It is submitted that PW-
2 - Sanjay Deshmukh in a second attempt identified the
accused Raju. It is, therefore, submitted that this evidence of
identification on the spot as well as at the time of test
identification parade cannot be accepted. Learned Advocate
further submitted that the pistol from which the alleged bullet
was fired had not been seized. The learned Advocate
13 201-J-APPEAL-439-16.odt
submitted that in the absence of examination of the revolver,
the report of the Chemical Analyzer cannot be accepted as a
gospel truth. Learned Advocate further submitted that there
was no reason for accused Raju to open fire on the police
inasmuch as he was not wanted by the police in Crime
No.5/2011 registered at Kholapuri Gate, Police Station,
Amravati. Learned Advocate submitted that the learned trial
Judge has glossed over all these aspects and held them guilty
for the crime which they have not committed.
11. Shri A. S. Fulzele, learned Additional Public
Prosecutor submitted that the evidence of the eye-witnesses
PW Nos.2, 5 and 14 is consistent and credible. Learned APP
submitted that the omissions sought to be relied upon by the
learned Advocates for the appellants have not been proved
through the Investigating Officer. Learned APP submitted that
the only aspect disputed in this case by the appellants is the
role attributed to them on the spot of incident. Learned APP
submitted that the direct and circumstantial evidence has been
14 201-J-APPEAL-439-16.odt
properly appreciated by the learned trial Judge. Learned APP
submitted that therefore, no interference is warranted in the
reasoned Judgment of the learned trial Judge.
12. The defence of the appellants as can be seen from
the suggestions put to the material witnesses is that PSI
Chaugule fired himself and committed suicide or due to the
enmity, the other police officers taking the advantage of the
situation, killed PSI Chaugule by using his service revolver. In
order to appreciate this defence coupled with the evidence of
PW Nos.2, 5 and 14, it would be necessary to take into
consideration the facts recorded in the spot panchnama. It is
not disputed that the deceased PSI Chaugule succumbed to the
bullet injury on his stomach. In order to prove that the PSI
Chaugule's death is homicidal, the prosecution has placed
reliance on the evidence of the Medical Officer PW-8 Dr.
Prafulla Patil. PW-8 Dr. Prafulla Patil has conducted the post-
mortem of the dead body of deceased PSI Chaugule on
16/01/2011. The post-mortem report is at Exh.67. PW-8 has
15 201-J-APPEAL-439-16.odt
deposed that he found the following injuries on the dead body.
i] Punctured Wound
location 4 cm above umbilicus in umbilical
region slightly on right side of mid sternal line
Dimension 0.5 cm in diameter circular wound
with demarcated edges.
13. PW-8 Dr. Prafulla Patil further stated that there is
injury to spinal cord at T 4 to T 5 vertebra and bullet was
lodged in between (intervertabreel disc) upto spinal cord level.
He noticed Aortic tear of size 1.5 cm x 0.5 cm approximately.
He has categorically stated that the injury found by him was
ante-mortem. PW-8 has opined that the cause of death was
due to gun-shot bullet injury to vital organs leading to internal
haemorrhage and hypovolemic shock. PW-8 identified the
bullet Article F-1 in the Court being the same bullet recovered
from body of the deceased. He has stated that at the time of
post-mortem, he had preserved the viscera in 5 bottles. It is to
be noted at this stage that the CA report of the viscera at
Exh.83 proves that the viscera sample did not reveal any
poison or poisonous substance. Perusal of his cross-
16 201-J-APPEAL-439-16.odt
examination would show that on these material aspects, this
evidence has not been shaken.
14. In order to corroborate this aspect, reliance has been
placed on the evidence of PW-9 Dr. Arvind Kolte. It is the
case of the prosecution that immediately after sustaining bullet
injury, the deceased was carried to a private hospital of PW-9
Dr. Kolte. PW-9 Dr. Kolte has stated that he attended the
deceased on his admission. He has stated that he found injury
on his stomach. He has further stated that the deceased was
brought to the hospital in unconscious state and his blood
pressure and pulse was not recordable. He, therefore, applied
Cardio Respiratory Resuccitation to the patient due to which
the abdomen started distending and pulse was recorded. He
has stated that the deceased did not respond to the treatment
and on 16/01/2011 at 2.10 a.m., he died. Perusal of his cross-
examination would show that there was no challenge to the
material part of his evidence. The prosecution on the basis of
these two witnesses has proved that immediately after the
17 201-J-APPEAL-439-16.odt
incident, the deceased was taken to the hospital of PW-9
Dr.Kolte. He treated him. He noted down the condition of the
deceased and particularly, the injury on his stomach. PW-8 -
Dr. Prafulla Patil in his evidence has proved the cause of death
and the nature of injury being ante-mortem.
15. In order to appreciate the defence of the appellants,
we have minutely perused the evidence of the eye-witnesses
PW Nos.2, 5 and 14 and the facts recorded in the panchnama.
Minute perusal of the evidence of these witnesses and the facts
recorded in the panchnama clearly indicates that there is no
substance in the defence of the appellants. The evidence and
the facts recorded in the panchnama completely rule out the
possibility of suicide by deceased and also the elimination of
the deceased by PW Nos.2, 5 and 14. It has come on record
that the house in which the appellant Raju was residing was
taken on rent by the wife of Raju. This fact has been proved on
the basis of the evidence of PW-10 - Sk. Rashid Sk. Wajir. It
has come on record that Rajesh hails from Jalgaon. The
18 201-J-APPEAL-439-16.odt
evidence of PW-15 - Fulsing Bhoi is relevant on this aspect. In
fact, Fulsing Bhoi had pointed out the rented house of Raju to
the police. In his evidence, PW-10 - Sk. Rashid Sk. Wajir, who
is known as Rashid Coolie has deposed that he had let out the
room to Sangitabai, wife of Raju and mother of Raju and
children of Raju were residing in the same room. Perusal of the
cross-examination would show that there is no suggestion to
this witness consistent with the defence of the appellants, on
the point of occurrence of the incident. PW-10 Rashid Coolie
has also deposed about the occurrence. He did not witness the
actual occurrence. However, his evidence would show that
after hearing the sound of firing, he came out of his house. He
found that the police were on the spot. He came to know that
in the firing, PSI Chaugule had sustained bullet injury. It is,
therefore, seen that presence of Rajesh in the house was but
natural. It is the case of the prosecution that Golu who was
wanted accused in Crime No.5/2011 had taken shelter with
Raju at his house. It is the case of the prosecution that the
deceased PSI Chaugule had latched the door from the outside
19 201-J-APPEAL-439-16.odt
so that the occupants do not run away. It is the further case of
the prosecution that the appellants Golu and Raju bent the
door of the house and came out and fired with the revolver on
the police party.
16. The facts recorded in the panchnama fully
corroborate the evidence of PW Nos.2, 5 and 14 on the point
of actual occurrence of the incident. It has come on record in
the evidence of the witnesses as well as in the spot panchnama
that in front of the room occupied by Rajesh, there was a tin
compound of 4 feet height. The length of the compound was
22 feet. PW-2 Sanjay Deshmukh, deceased Chaugule and PW-
5 Sanjay Patinge had taken position to monitor the movements
of occupants outside the compound directly opposite to the
door of this house. Chaugule was facing towards the door of
the house. The panchnama records that there was a hole to the
tin sheet. The opening of the hole was on the side of the
deceased Chaugule. This fact would clearly indicate that the
bullet was fired from the verandah of the house of Raju and the
20 201-J-APPEAL-439-16.odt
said bullet pierced through the tin and further pierced into the
stomach of PSI Chaugule. The panchnama further records that
two fired cartridge cases of KF 7.65 mm revolver were found
in the verandah. It has been proved by the prosecution that the
bullet found in the stomach of PSI Chaugule was fired from
7.65 caliber revolver. This is consistent with the evidence of
PW Nos.2, 5 and 14.
17. It is the further case of the prosecution that in
retaliation, PW-2 Sanjay Deshmukh fired two shots from the
service revolver of the deceased PSI Chaugule. The facts
recorded in the panchnama with regard to the actual location
of cartridge cases of the bullets fired by PW-2 indicate that
same were fired from the side where the police team had taken
position to nab the appellants. One KF 9 MM cartridge case
was found in front of the house of Nivrutti Chim. The location
of the same house can be seen from the sketch which is a part
of the panchnama at Exh.38. It is the case of the prosecution
that before firing the second shot, PW-2 and PW-5 carried PSI
21 201-J-APPEAL-439-16.odt
Chaugule in injured condition towards the house of one
Parvatibai. One red colour car was parked there. They took
shelter behind the said car. PW-2 Sanjay Deshmukh as per the
case of the prosecution fired one more bullet towards the
appellants. One KF 9 mm cartridge case was found on the side
of the house of Parvatibai near the red colour car. It has further
come on record in the panchnama that the bullet fired by
PW-2 - Sanjay Deshmukh from his 9 mm caliber pistol was
found in broken condition in the bathroom of the house of
Santosh Laxman Kachkure. The house of Santosh Kachkure is
on the southern side of the room occupied by Raju. It is the
case of the prosecution that after opening of fire on the police,
the appellants and the other accused started running in the
opposite direction. The factual position existing on the spot
recorded in the panchnama, therefore clearly rules out the
possibility of either suicide by the deceased PSI Chaugule or
the elimination of the deceased Chaugule by PW-2 Sanjay
Deshmukh and other members of the police team. The
situation prevailing on the spot and recorded in the spot
22 201-J-APPEAL-439-16.odt
panchnama clearly indicates that the version of PW Nos.2, 5
and 14 as to the occurrence is consistent and credible.
18. At this stage, it would be necessary to note the
existing factual position of the spot to appreciate the evidence
of the eye-witnesses in proper perspective. It can be seen on
perusal of the facts recorded in the panchnama and particularly
topography of the spot recorded in the sketch that PSI
Chaugule, PW-2 Sanjay Deshmukh and PW-5 Sanjay Patinge
were not far away from the door of the house of Raju. The
height of the tin compound from the ground was 4 feet. It has
also come on record in the evidence that in front of the room,
there was a platform. This would further indicate that the
person taking position at the place where the deceased
Chaugule, PW-2 Sanjay Deshmukh and PW-5 Sanjay Patinge
had taken position could be easily seen by the persons standing
in front of the house of appellant Raju. It is further seen that
for the purpose of leaving the said house through the
compound, the occupants had to come on the main road. It is
23 201-J-APPEAL-439-16.odt
the case of the prosecution that PW-14 Vijay Gaharwar, who
had taken position from the opposite direction came to the
spot on receipt of the phone call and saw the appellants fleeing
from this spot. Keeping the aspect of existence of the electric
light on the spot aside for a moment, it can be seen that it
would not have been difficult for the witnesses to see the
appellants. This evidence would clearly indicate that the
appellants could easily locate and see the Police Officers on the
road and open fire in their direction. This fact in our view
would lead further credence to the evidence of the prosecution
witnesses on the point of identification of the appellants on the
spot. It is pertinent to note that if there was darkness on the
spot as suggested, then the accused Raju could not have hit the
target with this precision. An inference has to be drawn from
this fact that the place where the police team had taken shelter
and position was clearly visible to the appellants and therefore,
shot was fired from the revolver in the direction of the police
team. In our opinion, this would be the most important aspect
while appreciating the improved version of PW Nos.2, 5 and
24 201-J-APPEAL-439-16.odt
14 on the point of existence of the electric pole around this
spot and electric light on the spot. The evidence of the eye-
witnesses PW Nos.2, 5 and 14 proves their presence on the
spot. These witnesses have narrated in detail the purpose of
their visit to Malkapur and the enquiry made by them with the
concerned persons at Malkapur with regard to the whereabouts
and location of the appellant Golu. The witnesses who have
provided them the whereabouts and the location of the
appellant Golu, are PW-11 Rajesh Nimbolkar and PW-15
Fulsing Bhoi. PW Nos.2, 5 and 14 have narrated the actual
occurrence in great detail. It has been proved that the appellant
Golu was wanted in Crime No.5/2011 registered at Kholapuri
Gate Police Station, Amravati. The co-accused arrested in the
said crime provided the necessary information that the
appellant Golu might be residing at Malkapur. PW-2 Sanjay
Deshmukh and deceased PSI Chaugule on the basis of the
mobile sim card of the appellant Golu traced out his location.
The mobile phone and the sim cards have been seized in this
case. The said evidence corroborates the version of PW-2
25 201-J-APPEAL-439-16.odt
Sanjay Deshmukh on this point. PW-2 has deposed that on
getting the actual location of the appellant Golu and the
appellant Raju, they went to the said place. PW-2 has deposed
that the deceased PSI Chaugule had gone near the door of the
house and on the basis of his assessment of the occupants
informed PW-2 that men and women were present inside the
house. He further informed that the suspected accused could
also be inside the house. He has stated that PSI Chaugule had
gone near the door of the said house and informed the
occupants that he was policeman and told them to open the
door. He has stated that when they went near the door, they
heard the sound of loading of bullet in the pistol. He has
further stated that the women were instigating the men to kill
the policemen. He has deposited that therefore, PSI Chaugule
latched the door from outside. They took position and shelter
by the side of tin sheet compound in front of the said house.
He has deposed that he gave message to Amravati Police
Headquarter and requested for police aid. He has stated that
the occupants were switching off and on the light in the house.
26 201-J-APPEAL-439-16.odt
They were knocking on the door. It is to be noted that this
conduct of the occupants would have further fortified the
suspicion of the police team with regard to the presence of the
wanted accused inside the house and they would have become
more alert and watchful. The next part of his evidence would
show that they monitored the movement of the occupants and
saw that in order to flee from the spot, the accused bent the
door of the house and came out of the house. He has deposed
that they fired the bullets from the pistol on them. He has
deposed that PSI Chaugule told him that the bullet has hit him
on the stomach. It is necessary to mention at this stage that
while minutely observing the movements of the occupants of
the house, PW-2 Sanjay Deshmukh and other members of the
police team saw that they were coming out of the house. It is to
be noted that if there had been darkness, PW-2 and other
members of the police team would not have been in a position
to see them bending the door and coming out of house. The
evidence would further show that before PW-2 and other
member of the police team could react, the bullets were fired
27 201-J-APPEAL-439-16.odt
by the appellants. PW-2 has deposed that thereafter, they took
PSI Chaugule near the red colour vehicle. He took the service
revolver of PSI Chaugule and fired in the direction of the
appellants. He has stated that the appellants along with women
fled from the spot in their opposite direction. He has further
deposed that other members of the police team saw them in
the electric light.
19. The PW-5 Sanjay Patinge has also narrated the
incident in great detail. His version is consistent with the
version of PW-2 Sanjay Deshmukh. These witnesses were
subjected to searching cross-examination on this point.
However, no material has been elicited in their cross-
examination to doubt their version on the occurrence of the
incident. Their evidence is unshaken on the point of seeing the
appellants in the street electric light. It is further pertinent to
note that since the appellants were not known to the witnesses
prior to this incident and to give credence to their version, test
identification parade of the appellant Golu and the appellant
28 201-J-APPEAL-439-16.odt
Raju was conducted on two different dates. PW-2 Sanjay
Deshmukh and PW-5 Sanjay Patinge identified the appellant
Golu and the appellant Raju in the said test identification
parade. Their evidence on the point of the identification of the
appellant Golu and the appellant Raju in the test identification
parade has also not been shaken.
20. This would now take us to the evidence of PW-14
Vijay Gaharwar. PW-14 Vijay Gaharwar was the member of
the police team. In his evidence, he has narrated the facts in
detail up to the time they located the house of the suspect. On
the actual occurrence, he has stated that after locating the
house, the deceased PSI Chaugule had asked him to stay on
one side of the house. He has stated that the remaining
members of the police team with Rajesh Nimbolkar went
towards the house. He has stated that after sometime, he heard
the sound of the firing. He, therefore, went towards the said
place. He has stated that he saw two men, two women and
three children running on the road. He has categorically stated
29 201-J-APPEAL-439-16.odt
that he saw them in the electric light. He identified the
appellant Golu and the appellant Raju in the Court. He has
stated that he chased them to catch them. However, they ran
away. He received phone call and the caller informed him that
PSI Chaugule had sustained bullet injury. If his evidence is
appreciated in juxtaposition with the topography of the spot, it
would show that he was on the southern side of the house and
after hearing the sound of the firing, he started running
towards the spot. His evidence indicates that he went to the
spot from the house of Kachkure which was southern side of
the spot.
21. The evidence of PW-2 Sanjay Deshmukh and PW-5
Sanjay Patinge clearly proves that the appellant Raju and the
appellant Golu with other accused ran away in opposite
direction. The evidence of PW-2 Sanjay Deshmukh and PW-5
Sanjay Patinge on one hand and PW-14 Vijay Gaharwar on
the other hand, if appreciated, would show that PW-14 while
proceeding towards the spot, crossed the appellants on the
30 201-J-APPEAL-439-16.odt
road and there, he saw them. In his evidence, he stated that
thereafter, they took the deceased Chaugule to the hospital.
The evidence of these witnesses would further show that he is
silent on the point of firing made by PW-2 Sanjay Deshmukh
in retaliation. His evidence factually appears worthy of
credence. This fact would further fortify his version that after
hearing the sound of firing, he went in the direction of the spot
and at that time, he saw two men, two women and three
children running away. He has categorically stated that there
was electric light on the road. Perusal of the evidence of PW
Nos.2, 5 and 14 together would show that on the point of
place of incident, the occurrence of incident and the manner of
occurrence of the incident and the event took place after the
occurrence of the incident is consistent. All the witnesses were
subjected to searching cross-examination. Perusal of their
evidence in entirety would show that no dent has been caused
to their credibility on the relevant facts deposed by them.
31 201-J-APPEAL-439-16.odt
22. Perusal of the cross-examination eye-witnesses
would show that the defence has almost admitted the existence
of the electric light on the spot. If the evidence of PW Nos.2, 5
and 14 is appreciated in juxtaposition with accurate firing of
the bullet at target namely; police team, it would indicate that
there was sufficient light on the spot to locate the persons
standing around the spot. In view of this position, the
improvements albeit not proved through the Investigating
Officer could not be said to be material. The evidence adduced
by the prosecution does not make the existence of the electric
light on the spot unbelievable. PW Nos.2, 5 and 14 identified
the appellant Golu and the appellant Raju in the test
identification parade. The evidence of PW Nos.2, 5 and 14
with sense of certainty indicate that they were not given an
opportunity by Tahsildar before conducting the actual test
identification parade to see the appellant Golu and the
appellant Raju. We, therefore, have no reason to discard and
disbelieve the evidence of PW Nos.2, 5 and 14. The learned
trial Judge has accepted their evidence on all the facts stated by
32 201-J-APPEAL-439-16.odt
them. We endorse our agreement with the finding of the
learned Additional Sessions Judge on this point.
23. It would be necessary to consider the evidence of
other witnesses examined to seek corroboration to the evidence
of PW Nos.2, 5 and 14. Those witnesses are PW Nos.10, 11,
12 and 15. As stated above, Rashid Coolie in whose house the
appellant Raju with his family was staying, has deposed about
the said fact as well as the occurrence of the incident of firing.
He has also deposed about the presence of the policemen at the
spot of incident on the given date and time. His evidence on
this aspect corroborates the evidence of PW Nos.2, 5 and 14.
PW-11 Rajesh Laxman Nimbolkar is the mobile repairing
shop owner. On the basis of the sim card of the mobile phone,
he was traced out and police made enquiry with him. PW-11
deposed on the point of recharge of the Mobile
No.9561980135. Initially, on the basis of the information
provided by him about absconding the appellant Golu, the
police team went to the house of one Pant Saheb. There, the
33 201-J-APPEAL-439-16.odt
police team and PW-11 came to know that the appellant Raju
with his family had shifted elsewhere. PW-15 Fulsing Bhoi
was residing as a tenant of Pant Saheb. The police made
enquiry with Fulsing and Fulsing informed the police team
that the appellant Raju with his family had gone to reside in
the premises of Rashid Coolie. He has stated that thereafter,
the police team, he and Fulsing went to the said house. He has
deposed about the events occurred on the spot till the time, the
door of the house was latched from outside by PSI Chaugule.
He has deposed that thereafter, the police team told him and
others to leave the said place. He has further stated that after
passing short distance from the spot, they heard firing of the
bullet. When they looked back, they saw the red colour spark
of bullet firing. On this point, PW-15 has deposed
consistently. While appreciating the evidence of PW Nos.11,
12 and 13, it is to be noted that they did not depose about the
actual occurrence of the incident. In our opinion, this would
reflect upon their credibility as well as the credibility of the
evidence of PW Nos.2, 5 and 14. If they had been planted as
34 201-J-APPEAL-439-16.odt
witnesses by the police to the occurrence, then they would
have stated about the actual occurrence of the incident and
fleeing of the appellant Raju and the appellant Golu with other
accused from the spot. In our view, this is very important fact
which weighs in favour of the prosecution.
24. PW-12 Santosh Laxman Kachkure is residing in his
house, which is adjoining to the house where the appellant
Raju with his family was residing. He has deposed that after
hearing the sound of bullet firing, he came out of the house
and saw the policemen on the spot. He has further deposed
that he has seen the bullet pieces in his toilet. He had shown
the said bullet to the police. It is to be noted that during
investigation, the pieces of the broken bullet were recovered
from bathroom attached to his house. His evidence, therefore,
corroborates the evidence of the eye-witnesses on the
occurrence of the incident on the given date and time.
Similarly, the recovery of the broken bullet from his bathroom
further fortifies the case of the prosecution that it was the same
35 201-J-APPEAL-439-16.odt
bullet, which was fired by PW-2 in the direction of the accused
persons.
25. PW-15 Fulsing Bhoi is the important witness
inasmuch he has deposed on vital aspects. PW-15 was
knowing the appellant - Raju before the incident. PW-15 apart
from deposing about the occurrence of the incident has
deposed about the country-made revolver possessed by the
appellant Raju. He has stated that since 9 years prior to the
occurrence, he had been residing in the room let out to him by
Pant Saheb. He has deposed that the appellant Raju, his wife,
children and his mother-in-law were residing in one room let
out to him by Pant Saheb. He has deposed that on one or two
occasions the appellant Raju and he had consumed liquor
together in his room. On one occasion, the appellant Raju had
taken out the pistol, which was kept beneath his bed. At that
time, the appellant Raju told him to see the pistol, which he
would have seen in the cinema. He took the pistol in his hand.
He has stated that the appellant Raju removed the bullet from
36 201-J-APPEAL-439-16.odt
his pistol and handed over pistol to him. He had shown the
said pistol to Krupal, Vedprakash and Ramesh. After half an
hour, he returned the pistol to appellant Raju. He has stated
that because of this incident landlord Pant Saheb made the
appellant Raju to vacate the tenanted room. Therefore, the
appellant Raju went to reside as a tenant in the premises of
Rashid Coolie. This part of the evidence of PW-15 was put to
strict scrutiny. He was subjected to cross-examination on this
point. However, perusal of this cross-examination would show
that no dent has been caused to his evidence. On the basis of
this evidence, the prosecution has proved that the appellant
Raju was possessing the pistol and the bullets.
26. The evidence of this witness after occurrence of the
incident is very relevant. He has stated that he along with
Rajesh Nimbolkar had accompanied the police to the house of
the appellant Raju and had pointed out the same to the police.
While narrating the post occurrence events, he has stated that
on the way to his house from the spot, he heard the sound of
37 201-J-APPEAL-439-16.odt
the bullet firing. After reaching his house, he went to attend
the nature's call. He has stated that while returning back after
attending the nature's call, he saw the appellant Raju. Raju was
carrying baniyan in his one hand and in another hand, he was
carrying the pistol. He has stated that the appellant Raju
pointed the pistol at his temple and demanded clothes and
money. He has stated that he removed the clothes on his
person and handed over the same to the appellant Raju. He has
also paid Rs.200/- to the appellant Raju. He has categorically
stated that while leaving the said place, the appellant Raju told
him to go in his room and not to disclose this fact to anybody.
He has deposed that about 4.00 p.m., police came to him and
made enquiry with him. He thereafter, came to know that the
appellant Raju had fired the bullet and one policeman had died
in the said incident. Perusal of this cross-examination would
show that there are no omissions and inconsistencies in his
evidence. The omission sought to be attributed to him from his
original statement was in fact not the omission. He had
disclosed all the facts to the police at the time of recording of
38 201-J-APPEAL-439-16.odt
his statement during the course of investigation. The core of
his evidence pre-incident and the post-incident has not been
shaken in his cross-examination. On the basis of his evidence,
the prosecution has proved that the appellant Raju was
possessing the revolver and the bullets. It is true that neither
this witness nor his erstwhile landlord Pant Saheb reported this
fact to the police. They may have the reasons for not reporting
the same to the police. However, this fact would not make the
evidence of this witness shaky. The evidence of this witness
assumes importance inasmuch as the revolver used by the
appellant Raju was not recovered during investigation.
27. There is evidence on record that after the arrest of
the appellant Raju, he had led the police to the house of one
person in the State of Madhya Pradesh to whom he had sold
the revolver. The investigation transpired that the said person
was detained in jail in some offence in the State of Madhya
Pradesh. The evidence of PW-15 Fulsing Bhoi, in our opinion,
lends an assurance to the case of the prosecution that the
39 201-J-APPEAL-439-16.odt
appellant Raju was possessing the revolver and the bullets. The
evidence further proves that after the incident, the appellant
Raju came to his house and by pointing the revolver at his
temple, took his clothes and money from him. On minute
scrutiny of his evidence, we do not find any infirmity in his
evidence. His evidence proves the presence of the police team
at the spot of the incident, the occurrence of the bullet firing
and death of PSI Chaugule. In our opinion, this witness on the
facts deposed by him is the star witness to the prosecution.
Despite searching cross-examination of all the relevant aspects
deposed by him, no dent has been caused to his evidence. On
minute scrutiny and appreciation of his evidence, we find his
evidence worth credible. We do not see any reason to discard
and disbelieve his evidence. The facts narrated by this witness
were from his knowledge. The evidence apart from
establishing the facts deposed by him corroborates the
evidence of PW Nos.2, 5 and 14 on other relevant aspects qua
the occurrence of incident.
40 201-J-APPEAL-439-16.odt
28. In this case, the weapon of offence was not
recovered during the course of investigation. As stated above,
during the course of investigation, the appellant Raju has
provided information to the police about the disposal of the
revolver. However, despite investigation, this aspect could not
be taken to its logical conclusion. In this case, there is hardly
any dispute about the occurrence of the incident in the manner
deposed by PW Nos.2, 5 and 14. The only disputed aspect is
the involvement of the appellant Raju and the appellant Golu
in the incident. The evidence of PW Nos.2, 5 and 14 and the
evidence of the Medical Officer and the Chemical Analyzer
proves beyond doubt that the deceased PSI Chaugule died due
to bullet injury. The bullet was seized. The fired bullet cases
from 7.65 mm caliber pistol as well as KF 9 mm caliber pistol
were recovered from the spot. The evidence on record proves
beyond doubt that the pistol was used for firing the bullet and
the said pistol was country-made pistol of 7.65 mm caliber. In
our opinion, in the teeth of this evidence, non-recovery of the
pistol would not be fatal to the case of the prosecution. It is
41 201-J-APPEAL-439-16.odt
settled legal position that the non-recovery of weapon of
offence may not always be fatal to the case of the prosecution.
The conviction of the accused can be based on available
evidence, even if the weapon of offence is not recovered. We
may seek support to this proposition from the judicial
pronouncements. We may usefully refer to the decisions in the
following cases:-
i] In the case of State of Rajasthan Vrs. Arjun Singh
and others, reported in (2011) 9 SCC 115, the Hon'ble
Supreme Court has held that mere non-recovery of cartridge
does not detract from the case of prosecution where the
evidence adduced is clinching and acceptable. It cannot lead to
a conclusion that no crime had taken place.
ii] In the case of Krishna Gope Vrs. State of Bihar,
reported in AIR 2003 SC 3114, the country-made rifle used
for firing was not recovered. There were eye-witnesses to the
incident of firing. The Hon'ble Supreme Court has held that
non-recovery of weapon from the house of accused does not
inure to the benefit of the accused.
42 201-J-APPEAL-439-16.odt
29. In order to prove the identification of the appellant
Raju and the appellant Golu, the test identification parade was
conducted. PW-13 Amol Kumbhare, the then Tahsildar at
Malkapur had conducted the test identification parade. The
evidence of PW-13 has been assailed by the appellants on the
ground that in the absence of examination of the panch
witnesses to the test identification parade, the evidence of
PW-13 loses the credibility. PW-13 had conducted the test
identification parade of the appellant Golu and the appellant
Raju. In his evidence, PW-13 has categorically deposed about
the procedure followed by him at the time of test identification
parade, the witnesses for the identification and identification
of the the appellant Golu and the appellant Raju by the
witnesses. It is true that ordinarily, the prosecution should
have examined the panch witnesses to the identification
parade. However, failure on the part of the prosecution to
examine the panch witnesses could not be a ground to reject
the evidence of PW-13 about the test identification parade
conducted by him. We may state that the test identification
43 201-J-APPEAL-439-16.odt
memorandum can be proved on the basis of the evidence of
the officer, who has conducted the test identification parade.
In this sense, the panch witnesses may not be said to be author
of the test identification memorandum. The author of the test
identification memorandum would be the officer conducting
the test identification parade. The panch witnesses in such
circumstances would be the witnesses to depose about the test
identification parade conducted in their presence by the
officer. Therefore, the failure to examine the panch witnesses
would not by itself be a ground to discard the evidence of
PW-13, especially when evidence of PW-13 is not shaky. In
our opinion, examination of the panch witnesses in this case
would have been an icing on the cake for the prosecution. We,
therefore, do not see any reason to discard the evidence of
PW-13.
30. PW-13 Amol Kumbhare, as can be seen from his
evidence, followed the required procedure. He maintained the
fairness required at the time of test identification parade. He
44 201-J-APPEAL-439-16.odt
gave fullest opportunity to the appellant Raju and the appellant
Golu to change their positions in the row of dummies. It has
come on record that PW-13 gave an opportunity to each
identifying witness to observe the parade twice by changing
the position of the appellant Raju and the appellant Golu in
the parade. It has come on record that PW-2 Sanjay
Deshmukh in his first attempt could not identify the appellant
Raju. This fact has been recorded in the test identification
memorandum and the evidence of PW-13. This fact, in our
opinion, would lend an assurance to the fairness of the test
identification parade. This would show that PW-13 acted
independently. He recorded true account of the events
occurred at the test identification parade. If PW-13 had hand-
in-glove with the Investigating Officer, then he could have
created a record suitable to the police, stating that even in the
first attempt, PW-2 Sanjay Deshmukh had identified the
appellant Raju. He was subjected to searching and gruelling
cross-examination. Perusal of his cross-examination would
show that he could not be deviated an inch from his original
45 201-J-APPEAL-439-16.odt
version. No dent has been caused to the core and crux of his
evidence. We do not see any reason to discard and disbelieve
his evidence. Perusal of his evidence in entirety would show
that he followed the procedure strictly and observed the
transparency while conducting the test identification parade.
The evidence of PW-13 coupled with the evidence of PW
identified the appellant Raju and the appellant Golu being the
assailants of PSI Chaugule.
31. It is settled legal position that the evidence of the
test identification parade can be used for the purpose of
corroboration. The substantive evidence is the identification of
the accused in the Court by witness. It is seen that PW-2 was
not granted an opportunity to identify the appellant Golu in
the Court because on that date, he was not produced from the
jail. The remaining accused namely; accused Nos.2, 3 and 4
were produced. Even if this part of evidence of PW-2 is
eschewed from consideration, the evidence of PW Nos.5 and
46 201-J-APPEAL-439-16.odt
14 would be sufficient to establish their identity. It is seen that
on this point, there was blunder on the part of the learned
Additional Sessions Judge, Link Court, Malkapur who had
recorded the evidence of this witness. It is observed that
without taking required steps, the learned Judge proceeded to
record the evidence of such important witness in the absence
of the accused. It was not permissible in the teeth of the
mandate of Section 273 of the Code of Criminal Procedure.
We are constrained to observe that ignorance of this
fundamental provision of law by the officer of rank of
Additional Sessions Judge is totally unfathomable. In this case,
fortunately for the cause of justice, there are other witnesses on
the point of identification of the appellant Golu and the
appellant Raju. In the absence of those witnesses, grave
prejudice would have caused to the victim. The appellant Golu
and the appellant Raju would have got the benefit of this fact,
and would have been enabled to seek their acquittal from the
case. We are constrained to mention that not enough care was
taken to follow the rules in recording evidence of PW-2 in the
47 201-J-APPEAL-439-16.odt
sense that at that time appellant Golu was absent.
32. Be that as it may, in this case, the evidence of the
other witnesses has filled up the gap which arose from the
mistake committed in recording evidence of PW-2. The next
important witness relied upon to seek corroboration to the eye-
witnesses is PW-19 Pramod Misal. PW-19 Pramod Misal is an
Assistant Chemical Analyzer. At the relevant time, he was In-
charge of the Ballistic Division, Regional Forensic Science
Laboratory, Nagpur. He examined the bullet and the piece of
skin of deceased PSI Chaugule and other articles forwarded to
him by Investigating Officer. On examination of articles, he
gave his report. Exh.146 is examination report of skin piece of
deceased PSI Chaugule. Exh.147 is examination report of
bullet. As far as the skin is concerned, he has opined that he
detected the metallic copper and lead around the periphery of
shot hole on the skin piece. The same were found to be
consistent with the passage and wipe of fired copper jacketed
bullet. In case of the bullet, the result of analysis is that the
48 201-J-APPEAL-439-16.odt
deformed copper jacketed bullet was fired, which was 7.65
mm pistol bullet. He has further opined that the characteristic
lengthwise brushing marks observed on the surface of the
bullet were showing that it has been fired from the country-
made gun having smooth bore barrel. This result of analysis
clearly indicates that the bullet examined by him was not fired
from 9 mm caliber pistol. We may mention at this stage that
this opinion belies the defence of the accused. At this stage, it
is necessary to state that the bullet examined by him was
deformed copper jacketed bullet. It is submitted on behalf of
the appellants that certain admissions given by this witness on
the point of dimension of the bullet, a doubt is created about
the firing of this bullet from 7.65 mm caliber pistol. In order to
satisfy ourselves, we have perused the evidence of PW-19
Pramod Misal, Chemical Analyzer. On going through this
evidence, we are convinced that there is no substance in the
submission. PW-19 has categorically deposed that the bullet
examined by him was fired from 7.65 mm pistol. The bullet is
having superficial brushing marks on its surface. He has stated
49 201-J-APPEAL-439-16.odt
that the bullet was deformed. He has stated that on the basis of
brushing marks on the surface of the bullet, he came to the
conclusion that it was fired from country-made gun having
smooth bore barrel. It has come on record that the cartridge
cases of 9 mm bullet and 7.65 mm bullet were seized. He has
stated in his cross-examination that 9 mm revolver cartridge
and 7.65 mm caliber cartridge have a different visible
dimension. He has further stated that on the basis of
dimension, weight and physical observation of the bullet
examined by him, he came to the conclusion that it was 7.65
mm bullet. The cartridge case of 9 mm bullet was shown to
him. The cartridge case of 7.65 mm bullet was shown to him
and he was asked to put the bullet examined by him in the said
empty cartridge cases. He could not fit the said bullet in that
cartridge case. On the basis of this, it was suggested to him that
it was not the bullet fired from 7.65 caliber firearm. PW-19
has explained in his evidence that when the cartridge fired
from the firearm hits any target, it may get "D" shaped or
deformed depending on the target and the impact on the
50 201-J-APPEAL-439-16.odt
target. He has admitted that if the bullet only passes the liquid,
then the shape and dimension of the bullet would not change.
In our opinion, this line of cross-examination has not caused
any dent to the evidence of this witness. In the earlier part of
Judgment, we have dealt with the target hit by the bullet.
Initially, the bullet hit the tin and after piercing through the
tin, the same hit on the stomach of the deceased PSI Chaugule.
The tin is a hard target. If the bullet had not hit the tin and
pierced through it, then there would have been substance in
the line of cross-examination. The evidence of this witness on
the point that the deformed bullet examined by him is 7.65
mm caliber bullet fired from 7.65 mm caliber firearm is
credible. In our opinion, therefore, the evidence of this witness
corroborates other evidence adduced by the prosecution that
the bullet which hit the deceased PSI Chaugule was fired from
7.65 mm caliber firearm and not from 9 mm caliber firearm.
We may state at this stage that if 9 mm service revolver of
PSI Chaugule had been sent for analysis, then same would
have dispelled all the doubts sought to be created. In any case,
51 201-J-APPEAL-439-16.odt
the same has not made any serious difference. The evidence of
PW-19 is consistent. It supports the case of the prosecution
and makes us to disbelieve the defence of the accused.
33. In the earlier part of the Judgment, we have
observed that the evidence proves that on the spot, there was
electric light. On this point, we may consider the evidence of
Investigating Officer PW-17 Shriniwas Patil. The spot
panchnama was drawn by PSI Mr.A.M. Khan. Panch witness
has been examined. Mr. A. M. Khan has not been examined.
On 16/01/2011, the investigation was handed over to PW-17
Shriniwas Patil. In the spot panchnama, there is no mention
about the existence of electric pole or electric light on the spot.
PW-17 Investigating Officer in his examination-in-chief did
not utter a word about the existence of light on the spot. In this
backdrop, it would be necessary to see his cross-examination.
Perusal of his cross-examination would show that it has been
conducted on the assumption that this witness in categorical
term has deposed about the existence of light on the spot. We
52 201-J-APPEAL-439-16.odt
may state that being the Investigating Officer PW-17
Shriniwas Patil could not be said to be a stranger to all these
facts. Perusal of his evidence would show that during the
course of investigation, he had made request to Revenue Circle
Inspector to draw the sketch of spot of incident. The said letter
is at Exh.139. The record reveals that the sketch of the spot of
the incident was drawn. However, the Revenue Inspector who
had drawn the sketch was not examined. The sketch has not
been proved. In the sketch, it has been stated that at two
places, there were electric lights. Learned Prosecutor In-charge
of the case in Trial Court seems to have not applied his mind
to this important aspect. The prosecutor In-charge of the case
in view of the fact that the statement with regard to the
existence of light made by PW Nos.2, 5 and 14 did not find
place in the First Information Report and in their statements,
ought to have taken precaution to prove such an important
document. Be that as it may, the fact remains that the evidence
of the witnesses has been found to be credible on this point. A
line of cross-examination of the Investigating Officer would
53 201-J-APPEAL-439-16.odt
further support this observation. The relevant cross-
examination is at Page No.225 in para No.18 of the evidence
of PW-17. It was suggested to this witness that there was no
street light from the spot of incident up to distance of 102 feet.
In further probing cross-examination, PW-17 has stated that
the street light was at the distance of about 5 to 10 feet from
the house of Santosh Kachkure. The accused after firing round
fled from the road in front of the house of Santosh Kachkure.
PW-17 to a pointed question has stated that he did not enquire
as to whether there were two houses and neem tree on the spot
of incident between the street light. The line of cross-
examination suggests that the light was blocked due to two
houses and neem tree. This line of the cross-examination
proceeds on the assumption that there was light on the spot,
but the same was blocked. In our opinion, the answers invited
in the cross-examination further illuminate the point of
existence of the street light on the spot. We have minutely
perused the reasons recorded by the learned Additional
Sessions Judge. Perusal of the Judgment would show that the
54 201-J-APPEAL-439-16.odt
learned Additional Sessions Judge has taken the relevant
evidence into consideration. The finding of guilt of the
accused is based on proper appreciation of the evidence. The
learned Additional Sessions Judge has recorded the reasons to
hold the appellants guilty of the offence for which they have
been convicted and sentenced. On re-appreciation of the
evidence in the appeals, we are fully satisfied that the guilt of
the appellants has been proved beyond doubt.
34. The learned Advocate during the course of the
argument to substantiate the submissions, placed reliance on
the following decisions :-
i] The learned Advocate for the appellant Raju relying upon
the decisions in the cases of Ashoksingh Jayendrasingh Vrs.
State of Gujarat, reported in (2019) 6 SCC 535 and
Bollavaram Pedda Narsi Reddy and others Vrs. State of
Andhra Pradesh, reported in (1991) 3 SCC 434 submitted
that the failure to mention the existence of electric light in the
panchnama and in the First Information Report would create a
doubt about the evidence of the eye-witnesses PW Nos.2, 5
and 14 and thereby, the identification of the appellant Raju
55 201-J-APPEAL-439-16.odt
and the appellant Golu by these witnesses at the time of test
identification parade becomes doubtful. It is observed in the
case of Ashoksingh Jayendrasingh Vrs. State of Gujarat (supra)
that in the absence of the evidence of availability of sufficient
light, the identification of the accused and overt act attributed
to the accused would become doubtful. In this case, the
incident had occurred in the agricultural field of the informant
at 9.00 p.m. There was no evidence as to the existence of
electric light. In the case of Bollavaram Pedda Narsi Reddy and
others Vrs. State of Andhra Pradesh (supra), the evidence on
record was found insufficient in the absence of proof of the
light at the place of occurrence and proximity to the assailants.
It is observed that in such situation, it was not proper to place
reliance on so called eye-witnesses.
ii] Relying upon the decision in the case of Wakil
Singh and others Vrs. State of Bihar, reported in AIR 1981 SC
1392, the learned Advocate submitted that the description of
the assailants in this case was not provided by the witnesses at
the stage of investigation as well as at the stage of evidence and
therefore, the identification of the appellant Golu and the
appellant Raju at the time of test identification parade becomes
doubtful.
56 201-J-APPEAL-439-16.odt
iii] Relying upon the decision in the case of Sujit Biswas
Vrs. State of Assam, reported in AIR 2013 SC 3817, the
learned Advocate submitted that the omission on important
fact as to the existence of the electric light on the spot affects
the probability of the case of the prosecution.
iv] Relying upon the decision in the case of the State of
Gujarat Vrs. Adam Fateh Mohmed Umatiya and others,
reported in 1971 (3) SCC 208, learned Advocate submitted
that in the absence of the recovery of pistol allegedly used in
the crime and examination of the same with the result of the
test fired cartridges and empty cartridges found on the spot
and the bullet, the reliance cannot be placed on the evidence of
the Chemical Analyzer.
35. We have gone through the Judgments relied upon
by the learned Advocate. We have recorded a finding that
there is sufficient material, including the conduct of the
appellant Raju and the appellant Golu to accept the case of the
prosecution on the point of existence of the electric light on
the spot. The evidence of the eye-witnesses on the fact of
existence of electric light on the spot is found credible. The
57 201-J-APPEAL-439-16.odt
omission sought to be attributed to the eye-witnesses has not
been proved. The weapon i.e. pistol used in this case was not
recovered. The custody of the pistol with the appellant Raju
has been proved on the basis of the independent evidence of
PW-15 Fulsing Bhoi. It is also undisputed on behalf of the
appellants that the deceased PSI Chaugule died due to injury
sustained by the bullet which was retrieved from his body. The
facts recorded in the panchnama crystallized the facts with
regard to the actual occurrence of the incident and use of
country-made pistol for firing on the police party. In our view,
therefore, the law laid down in the judgments relied upon by
the learned Advocate for the appellant Golu is of no help and
assistance to the case of the appellant. The evidence in this case
on re-appreciation in this appeal has been found credible and
accepted. We, therefore, do not see any reason to interfere with
the findings of the fact recorded by the learned Additional
Sessions Judge. We are, therefore, not inclined to accept the
submissions advanced by the learned Advocate for the
appellant Golu and the appellant Raju. As a result of this, we
58 201-J-APPEAL-439-16.odt
conclude that these appeals fail. Hence the following order :-
ORDER
Criminal Appeal Nos.439/2016 and 440/2016
stand dismissed.
[G. A. SANAP, J.] (SUNIL B. SHUKRE, J.]
Choulwar
Digitally signed by
VITHAL VITHAL MAROTRAO
MAROTRAO CHOULWAR
Date: 2022.07.01
CHOULWAR 15:50:39 +0530
