Shamrao S/O Budhu Gotami vs State Of Mah. Thr. Pso Jarawandi ...
2022 Latest Caselaw 5272 Bom

                              1               208.APEAL.257-2020.odt




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

              CRIMINAL APEAL NO. 257 OF 2020


     Shamrao s/o Budha Gotami
     Aged about 41 years, Occ. Cultivation,
     R/o Karka (Khurd), Post-Kasansur,
     Tah. Etapalli, District : Gadchiroli.
     (Presently lodged at Nagpur Central
     Prison, Nagpur 440012).                       APPELLANT


                   Versus


     State of Maharashtra,
     Through P.S.O. Jarawandi,
     District : Gadchiroli.                         RESPONDENT

-----------------------------------------------
Mr. Harshal P. Lingayat, Advocate for the Appellant.
Mr. Amit R. Chutke, APP for the Respondent/State.
-----------------------------------------------


                  CORAM : AVINASH G. GHAROTE, J.

                  DATED     : 10th JUNE, 2022.

ORAL JUDGMENT :-

1. The matter was heard and admitted on 21.07.2020. The

R & P was called which was received as per the Farad-sheet entry 2 208.APEAL.257-2020.odt

dated 13/08/2020 and the matter was kept thereafter for hearing on

the application for suspension of sentence, which came to be rejected

by order dated 25.08.2020. The matter, when listed on 08.06.2022,

the learned Counsel for the appellant expressed his readiness for

final arguments, to which the learned Additional Public Prosecutor

Shri Chutke, agreed, as a result of which, the matter has been finally

heard.

2. Heard Mr. Lingayat, learned counsel for the appellant

and Mr. Chutke, learned APP for the respondent/State.

3. Mr. Lingayat learned counsel for the appellant submits

as under:

(i) Even if the appellant was found on the spot of the

incident, however his conduct would indicate that at no point of time

he was member of any unlawful assembly.

(ii) The village Karka of which the appellant is

resident is situated approximately 1 to 2 kms, from the spot of

incident. The appellant was found in the jungle with an axe which is

a natural circumstance for villagers to be. This position has been

admitted by PW-5 Subhash Wadhai (Ex.33 page 70), in his cross-

3 208.APEAL.257-2020.odt

examination (para 3). The axe has also not been seized.

(iii) PW-3 - Rakesh Yengantiwar the panch to the

seizure memo under Section 27 of the Evidence Act (Exh.25

page 53) claims that the seizure was effected from village Karka as

against which PW-9 Arun Bhoyar the second panch to the seizure

memo (Exh.47 page 81) claims that the seizure was effected at

village Javeli which is approximately 9 kms, away from village Karka,

and therefore, the seizure itself is doubtful.

(iv) The accused was detained at Gadchiroli Police

Station, whereas the panch PW-3 and PW-9 are from village

Jaravandi which is 90 kms, away from Gadchiroli which would

indicate that interested witnesses were procured by the prosecution.

(v) PW-12 Nitin Mohite, Investigating Officer (Exh.

56 page 99), claims that the memorandum under Section 27 of the

Evidence Act was recorded first and thereafter the spot panchnama

was recorded which is contrary to the record, as the spot panchnama

was recorded earlier and the memorandum under Section 27 of the

Evidence Act was recorded in the later point of time, which shows

that no memorandum was ever recorded.

4 208.APEAL.257-2020.odt

(vi) The prosecution claims that the discovery was

made from the field of the accused, however there is no document

placed on record to show that the field from which the discovery was

made belongs to the appellant/accused.

(vii) PW-2 and PW-5, the eyewitnesses do not attribute

any overt act to the appellant but only say that the accused was

hiding at the spot of the incident beneath the trunk of the tree

holding an axe.

(viii) There is no injury to any person in spite of the

fact that the prosecution claims 149 rounds were fired by the Police

Party, apart from which, multiple rounds are claimed to have been

fired by the naxalites during the said incident. Only one single empty

cartridge has been seized from the spot after four days of the

incident (Exh.26 page 56 spot panchnama).

(ix) No common object so as to invoke Section 149 of

the Indian Penal Code has been proved on record.

It is therefore submitted, that the conviction rendered by

the learned Sessions Court, is merely based upon conjecture and

surmises, and therefore, cannot be sustained and is liable to be 5 208.APEAL.257-2020.odt

quashed and set aside and the appellant is entitled to an acquittal.

4. Mr. Chutke, learned APP for the respondent/State

submits as under:

(i) The accused was apprehended on the spot.

(ii) One gun was recovered as per the disclosure statement

made under Section 27 of the Evidence Act at the instance of the

appellant (Exh.29 - Statement) as per the seizure panchnama Exh.30

(page 62), for which there is no explanation forthcoming, and thus

indicates involvement of the appellant.

(iii) There is no cross-examination of PW-2 and PW-5 in

respect of the presence of the appellant on the spot.

5. With the assistance of Mr. Lingayat, learned counsel for

the appellant and Mr. Chutke, learned APP for the respondent/State,

I have gone through the record and proceedings of the learned

Sessions Court and the evidence led.

6. The incident is dated 30.05.2017, when PW-2 Rakesh

Ramsu Hichami who at that time was the Naik Police Constable 6 208.APEAL.257-2020.odt

attached with the unit known as C-60 at about 04.00 p.m. (1600

Hrs) alongwith 3 Officers and 65 Police personnel had reached Karka

Forest Area and while they were proceeding for search, were fired

upon near a nullah from the east side, whereupon they took shelter

and retaliated by counter firing. There was firing for 15-20 minutes.

After it stopped, a search was made, whereupon the appellant was

found sitting beneath the stump of a tree holding an axe near the

nullah from where he was arrested. It is further contended, that on a

search at the spot, 6 live cartridges, 3 pittus, 1 green coloured shirt, 1

claymore detonator attached with wire, 1 radio and one pressure

cooker was found on the spot. The Bomb Detection Squad was

summoned, which reached the spot at 10.00 p.m. (2200 hrs),

whereupon they found that the pressure cooker was containing

blasting material. On the next morning, the Bomb Detection Squad

made it useless. It is stated, that there were about 30-35 naxalites in

the said incident and were calling names to each other, such as

Mahesh, Ranjit, Joganna, Madhu, Shamrao and also uttering "cover

the policemen". The naxalites thereafter fled away in the jungle.

7. It is contended, that the material on the spot was seized

under seizure panchnama at Exh. 24 (page 52) to which PW-3

Rakesh Bhikaji Yengantiwar (Exh.25, page 53) and PW-9 Arun

Charandas Bhoyar (Exh. 47, page 81) are the panch witnesses. There 7 208.APEAL.257-2020.odt

is a further seizure under Section 27 of the Evidence Act at the

instance of the appellant at Exh.29 (page 62) under which it is

claimed that one Bharmar Rifle has been seized at the instance of the

appellant from underneath a heap of hay (Tanas) from the field

claimed to be owned by the appellant. The seizure memo is at Exh.

30 (page 63), of which PW-3 and PW-4 are the witnesses. The two

seized guns are claimed to have been sent for analysis to the

Regional Forensic Science Laboratory and the examination report at

Exh. 51 (page 86), dated 04.07.2017 and Exh. 52 dated 12.07.2017

(page 88) states that the single barrel muzzle loading gun was in

working condition and residue of fired gun powder was detected in

barrel washing showing that the gun was used for firing prior to its

receipt in the laboratory.

8. It is on the basis of the aforesaid five witnesses and the

seizure memos and memorandum panchnama, that the appellant has

been convicted for the offence under Sections 307 read with Section

149, 353 read with Sections 149, 148 of the Indian Penal Code and

sentenced by the learned Sessions Court.

9. PW-2 and PW-5 are claimed to be the eye-witnesses. A

perusal of the evidence of PW-2 Rakesh Hichami (Exh.21 page 40)

indicates, that it is as sketchy as possible. There are no details as to 8 208.APEAL.257-2020.odt

in which portion of the Karka Forest, the incident took place. The

only statement is that when the Police party reached Karka Forest

area and were proceeding for a search, a firing was opened near

nullah from east side. For the purpose of identification, the forest is

divided into various blocks, there is no mention of any particular

block of the Karka Forest in which this incident is alleged to have

been taken place. He also does not name any nearby village, so that

the place of the incident could be identified by a directional method.

PW-2 admits that the firing lasting for 15-20 minutes and after the

firing stopped, when they started searching the place, they found the

appellant sitting beneath a tree stump near the nullah. Admittedly,

nothing has been found on the person of the appellant. The axe

which he was holding is not seized. Though, it is stated that one rifle

was lying near him, the make, bore of the rifle is not stated, nor is

the rifle described by this witness. There is no mention of the

distance between the rifle and the appellant, considering that it is

claimed that Karka forest is a thick forest. Though, it is also claimed

that in the search, six live cartridges, 3 pittus, 1 green coloured shirt,

one clay-more detonator attached with wire, one radio and one

pressure cooker were found on the spot, however, the distance

between the location at which the appellant was found and the place

from were the aforesaid seizure was made is also not mentioned.

Though it is stated by PW-2 that there was intense firing going on for 9 208.APEAL.257-2020.odt

15-20 minutes, he claims to have heard the opposite party calling

various names. He, however admits, that the naxalites fled away in

the jungle. The examination-in-chief of PW-2 is rift with a number of

inconsistencies as indicated above. In cross-examination, PW-2

admits, that though while lodging the report, he had stated that a

rifle was lying near the accused, that sentence was absent in his

report, which would take away the veracity of the claim, that a rifle

was found lying near the appellant. He further admits, that Karka

forest is a dense forest and the village Karka is about 2-2½ kms,

away from the spot and generally the forest dwellers used firewood

from the jungle. He also admits, that after firing all the naxalites fled

away.

10. A perusal of the report lodged by PW-2 (Exh.22 page

43) reveals that the same states that a 12 bore rifle was seized from

the spot. The seizure memo at Exh. 24 (page 52), does not indicate

seizure of any 12 bore rifle. What Exh. 24 - the seizure memo

indicates is the seizure of a single shot country made rifle, which is

different than what is claimed to have been seized by PW-2 in the

complaint dated 01.06.2017 (Exh.22, page 43). That apart, the date

of seizure of Exh.24 (page 52) is 08.06.2017, whereas the date of the

incident is dated 30.05.2017 and there is a substantial time lag of 9

days between the date of the incident and the date of the seizure 10 208.APEAL.257-2020.odt

(Exh. 24), which in my considered opinion destroys the credibility of

the seizure itself. Moreover, there was no necessity of any time gap

for seizure whatsoever for the reason that the aforesaid material is

claimed to have been found on the spot of 30.05.2017 and taken into

custody, that being so, the seizure ought to have been recorded on

30.05.2017 itself and not on 08.06.2017. Moreover, the seizure

memo (Exh. 24) indicates, that the seizure has been made not from

the spot of incident but from PW-2 at Police Station Jaravandi. This

clearly indicates a serious infirmity which vitiates the entire seizure,

thereby casting the so-called disclosure and seizure under Section 27

of the Evidence Act into disrepute. Mr. Lingayat, learned counsel for

the appellant, has rightly relied upon Amarjit Singh Alias Babbu Vs.

State of Punjab, 1995 SCC (Cri) 828 , in which, while considering the

seizure of a weapon i.e. a revolver, it was found that it was never

sealed on the spot but was handed over by the Sub Inspector of

Police to some other person who had not been examined and who

used to visit the Police Station, it was held, that considering the

aforesaid position the non-sealing of the revolver on the spot was a

serious infirmity because the possibility of tampering of the weapon

could not be ruled out. As indicated above, in the instant case, the

entire material which is claimed to have been seized under Exh. 24,

he is from the custody of PW-2 and at the Office of the Special Unit

at Gadchiroli and not from the spot and that too nearly 8 days after 11 208.APEAL.257-2020.odt

the date of the incident, which clearly vitiates the entire seizure.

What is also material to note as indicated above is that in the

complaint at Exh. 22, (page 44) what is claimed to be found on the

spot is a 12 bore rifle, whereas what has been seized under Exh. 24

was a single shot country made rifle, which are two different things

all together.

11. That apart, insofar as the discovery under Section 27 of

the Evidence Act is concerned, the memorandum panchnama at

Exh. 29 and 30 states, that a Bharmar gun was found at the instance

of the appellant (page 64). The evidence of PW-3 merely indicates,

that what has been seized under the memorandum panchnama

under Section 27 of the Evidence Act is one country rifle (article 2),

as against which PW-9 the other panch witness to the seizure at

Exhs. 29-30 does not identify article 2. It is also material to note, that

both the panchas i.e. PW-3 and PW-9 to the seizure memorandum

under Exhs. 29 and 30 are not from the near vicinity of village Javeli

from where the alleged seizure has been made, but are residents of

Jaravandi which is approximately 72 Kms, from Gadchiroli and

village Javeli in turn is 80 to 85 Kms, from Gadchiroli as has been

admitted by PW-9 in his cross-examination (page 81). The record

does not disclose as to why PW-3 and PW-9 who are resident of

Jaravandi which is quite distance away from Gadchiroli were taken 12 208.APEAL.257-2020.odt

as witnesses.

12. There is one yet another circumstances which destroys

the credibility of the Section 27 memorandum inasmuch as, Exh. 29

states, that the appellant is the resident of Karka (Khurd) Tahsil

Etapalli, District Gadchiroli, and the disclosure is to be made at

Mouza Javeli, which as per the memorandum under Section 27

(Ex. 27) is made from Mouza Javeli (page 64). In this context, if the

evidence of PW-3 is considered, in reference to Exh. 29 he states, that

the accused/appellant took the party to village Karka to his field

where the rifle was produced from beneath the paddy fodder.

Nowhere, PW-3 who is witness to Exh. 29 states, that Police party

had gone to Mouza Javeli which is the place stated in Exh. 29 as the

place of discovery. PW-9 on the other hand states, that after Exh. 29

was recorded the Police party has proceeded to Javeli village where

the seizure was made. It is thus apparent, that there is total

contradiction between the evidence of PW-3 and PW-9 both panch

witnesses to Exh. 29 regarding the place from which Article-2 is

claimed to have been seized. It has not been brought on record by

the prosecution, that the appellant owns any agricultural land at

Mouza Javeli but what has come on record is that the appellant was

resident of Karka (Khurd), which also is one of the circumstances

which affects adversely the credibility of the disclosure memorandum 13 208.APEAL.257-2020.odt

and seizure at Exhs. 29 and 30.

13. It is thus apparent, that the involvement of the

appellant, in the said crime is not established by the evidence of the

so called eye witnesses PW-2 Rakesh Ramsu Hichami and PW-5

Subhash Anandrao Wadhai. Neither is the Section 27 seizure has any

credibility, as indicated above, so as to even on that ground indicate

any involvement of the appellant.

14. Though, it is stated that the Police party on the date of

the incident comprised of 65 Police personnel plus three Officers in

three different units, not a single person is claimed to have seen the

appellant at that time of the incident, much less any overt act is

attributed to him. The theory that PW-2 has heard the names of

various persons being called during the course of firing also appears

to be far fetched as the distance between the two firing parties, has

not been brought on record nor has the frequency of the firing being

spoken of by any single person. What has been seized as claimed

under the seizure memo at Exh. 24 are 6 rounds of 12 bore

cartridges and nothing else. There are no empties or for that matter

any record how many bullets were fired from either side. Nobody

speaks about it. It is thus unbelievable, that if the firing was as

intense as is claimed to be, considering that Exh. 22 the complaint 14 208.APEAL.257-2020.odt

dated 01.06.2017 states, that as much as 149 rounds were fired by

the Police party itself, PW-2 hearing the names of various persons

including that of the appellant appears improbable and even

presuming otherwise that PW-2 may have heard the name Shamrao,

it ought to have been established that it related to the appellant

alone, considering what has been stated by PW-2 that all the

naxalites had run away.

15. PW-4 Mahesh Dama Gawde and PW-7 Vitthal Devu

Gotami, both have turned hostile. The evidence of PW-1, 6, 8, 10,

and 11, are formal in nature as PW-1 is the muddemal carrier, PW-6

is the person who has drawn the imaginary sketch map of the spot

(Exh. 36 Page 73), PW-8 is the Investigating Officer IO, who has

made the investigation, PW-10 is the person who has brought the

C.A. report and PW-11 is the person who has registered the crime.

Though, PW-13 is the sanctioning authority, however, considering

what has been discussed above regarding the very veracity of the

story put forth by the prosecution being doubtful in my considered

opinion nothing turns upon the sanction accorded or the evidence of

the PW-13.

16. A perusal of the impugned judgment, would indicate

that what has been relied upon is the evidence of PW-2 and PW-5 15 208.APEAL.257-2020.odt

and the FSL report at Exhs. 51 and 52, and so also the memorandum

panchnama Exh. 30 to hold that the appellant was guilty. The FSL

report Exhs. 51 and 52 could only be taken into consideration if the

memorandum under Section 27 at Exhs. 29 and 30 was found to be

truthful, which in my considered opinion, in light of the discussion

above does not inspire any confidence whatsoever.

Contradictory evidence of PW-3 and PW-9 in respect of the same

totally destroys its credibility. The evidence of PW-2 and PW-5 is also

contradictory and does not in my considered opinion bring home the

guilt to the appellant. The entire discussion as is apparent from the

impugned judgment, is in paras 24 to 29 and does not consider the

infirmities as pointed above. It is necessary to note, that when the

Court is considering the question of innocence or guilt of the accused

the chain of sequence of events has to be clearly established which,

in the instant case has not been so done beyond reasonable doubt.

Since, it is not disputed that the appellant was a resident of village

Karka which was approximately 2 - 2 ½ Kms, from the spot of the

incident, it cannot be said to be unreasonably or improbable, that the

accused may have gone to the jungle to collect firewood or for some

other purpose, more so when PW-5 in his cross-examination has

admitted that the appellant Shamrao was hiding himself in the forest

with an axe in his hand and has further admitted that whenever

there use to be firing in the forest, pubic use to run helter-skelter or 16 208.APEAL.257-2020.odt

hide themselves in the forest.

17. It is thus apparent, that the prosecution has failed to

bring home the guilt of the accused. In order to convict a person

under Section 148 of the Indian Penal Code, it has to be established

that the said person was armed with the deadly weapon and was

rioting (Section 146 of the Indian Penal Code), which in turn

requires an unlawful assembly. In the instant matter, the evidence of

PW-5 categorically establishes the appellant was found alone hiding

under the stump of a tree and though it is stated that he was holding

an axe there is nothing on record to indicate its use in any manner.

So also there is nothing on record to link the appellant with the

Naxal party, which is stated to have fled away. The requirement of

Section 142 of the Indian Penal Code thus is not satisfied at all, and

therefore, the conviction under Sections 148 and 149 of the Indian

Penal Code cannot be sustained.

18. It is thus apparent, that the impugned judgment does

not consider the evidence of PW-2 and PW-5 in the proper

perspective, nor does it consider the evidence of PW-3 and PW-9

vis-a-vis the seizure panchanama and memorandum Exhs. 29 and 30,

resultant to which, in my considered opinion the same cannot be

sustained. The judgment dated 19.12.2019 passed by the learned 17 208.APEAL.257-2020.odt

Sessions Court, Gadchiroli, is therefore quashed and set aside. The

appellant is acquitted of the charge under Section 307 read with

Section 149 of the Indian Penal Code, Section 353 read with Section

149 of the Indian Penal Code and Section 148 of the Indian Penal

Code. The appellant be forthwith released if not required in any

other offence.

19. The criminal appeal is allowed in the above terms.

(AVINASH G. GHAROTE, J.)

Sarkate/Bhimte

Digitally signed bySHRIKANT DAMODHAR BHIMTE Signing Date:11.06.2022 17:52