Bombay High Court

Amod Anil Ghanekar vs State Of Maharashtra And Ors on 24 July, 2023

Bench: P. K. Chavan

2023:BHC-AS:20420                                                     901-1891-2023-IA-F=.doc

                    Uday S. Jagtap


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION

                                     INTERIM APPLICATION NO. 1891 OF 2023
                                                      IN
                                        CRIMINAL APPEAL NO. 592 OF 2023

                    Amod Anil Ghanekar
                    Age: 37 years, Occ. Service,
                    Permanent Address :- Joshi
                    Sankul, Flat No.17, 500/2,
                    Mehunpura, Shaniwar Peth,
                    Pune (At present in judicial
                    custody and lodgd at Yerwada
                    Central Jail, Pune)                              .. Applicant

                              Vs.

                    1. The State of Maharashtra
                       Through Deccan Police Station, Pune

                    2. Devendra Shebrao Ingale
                       (Prosecution Witness No.9)
                       R/at Omkar Society, Pandav Nagar,
                       Shivajinagar, Pune

                    3. Sadhana Devendra Ingale
                       R/at Omkar Society, Pandav Nagar,
                       Shivajinagar, Pune                            .. Respondents

                                                     .....
                    Mr. Subhodh Desai a/w Mr. Yashovardhan Deshmukh i/b Parinam
                    Law Associates for the applicant / appellant

                    Mr. A.R. Kapadnis, APP for the respondent - State

                    Mr. Amey Deshpande a/w Mr. M. Ansari, Harsh Nishar and Ms.
                    Vandana Bait i/b Jayendra D Khairnar for the respondent nos.2 & 3
                                                   .....




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                               CORAM : PRITHVIRAJ K. CHAVAN, J.

Reserved on : 14th JULY, 2023 Pronounced on : 24th JULY, 2023 ORDER :-

1. This an application seeking suspension of execution of the

sentence pending the appeal and release of the applicant on bail.

2. The applicant has been convicted of the offence punishable

under Section 304 of the Indian Penal Code and is sentenced to

undergo rigorous imprisonment for 7 years and to pay a fine of

Rs.5 lakhs, in default to suffer simple imprisonment for 1 year. He

was inter alia directed to pay an amount of Rs.3 lakhs to the parents

of the deceased towards compensation.

3. Prosecution case in brief is as follows.

4. The applicant was a NCC teacher in a school called Loyola

High School, Pune. On 1st February 2023, he had taken 46

students of the said school to a firing range for firing practice

through 0.22 rifles at the NCC Headquarter at Senapati Bapat

Road, Pune. The pre-lunch session of firing was over. In the post-

lunch session, students namely PW-1 Aman Manish Modi, PW-2

Kshitij Malvankar and the victim - Parag Devendra Ingale were

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asked to fire rounds from 0.22 rifles.

5. It is the case of the prosecution that the applicant was

standing behind the students and was also firing from another 0.22

rifle without any licence or authority. The students were firing

from lying position. Despite having knowledge that any of the

cadet students would suddenly stand-up and would incur risk of

hitting with a bullet, the applicant, who was standing just behind

the victim, started firing from 0.22 rifle. At the relevant time,

because one of the student namely Steve shouted from behind " pyks

mBks cl vk x;h" the victim - Parag Ingale suddenly got up and bullet

fired from the 0.22 rifle by the applicant hit left side of his

forehead, due to which he fell down. The applicant immediately

put his hand upon the wound to stop the blood from oozing out.

6. The victim was then shifted to Command Hospital,

Wanawadi. The victim was operated upon. However, he remained

in Persistent Vegetative State (PVS) for about 3 years and expired

on 7th January 2006 i.e. almost after 3 years.

7. At the relevant time, victim Parag Ingale was studying in 8 th

standard in the said school. The Commanding Officer, 1,

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Maharashtra Signal Company NCC, Senapati Bapat Marg, Pune

informed about the said incident by letter dated 01.02.2013 to

Deccan Police Station, Pune on the same day. A.P.I. Smt. Salunkhe

and a Senior Officer of the Deccan Police Station thereafter met

PW-7 Colonel Rajesh Khosala, who had informed about the

incident to the Police by the aforesaid communication.

8. A crime was registered being C.R. No.34 of 2013 with the

Deccan Police Station, Pune for the offence punishable under

Section 308 of the Indian Penal Code. The applicant was arrested

on 5th February, 2013. After investigation, a charge-sheet was filed

against him on 30th April, 2013 of the offence punishable under

Section 308 of the Indian Penal Code. After the victim - Parag

Ingale succumbed to the bullet injury on 7 th January 2016, Section

304 of the Indian Penal Code came to be added.

9. The trial Court, after framing charge and having recorded the

evidence of prosecution witnesses, convicted and sentenced the

applicant as above. The defence of the applicant was denial of the

commission of offence alleged. According to him, it was Havaldar

PW-4 Kundalik Yellari, who was instructor in Army and was present

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at the time of firing, had fired the cartridge from his 0.22 rifle,

resulting into the death of the victim - Parag Ingale.

10. I heard learned Counsel for the applicant and the learned APP

at length.

11. Learned Counsel for the applicant has invited my attention to

the evidence of PW-16 P. Saravanan, who was then posted as a

President -2 Air Force Selection Board at Mysuru, Karnataka. He

was appointed as an Inquiry Officer on 2 nd February 2013 in respect

of the inquiry to be conducted in the said incident regarding the

head injury sustained by the victim - Parad Ingale while carrying

out firing practice from 022. rifle. However, his cross-examination

reveals that at the relevant time, PW-4 Kundalilk Yellari was found

guilty for not following standard operating procedure of the range.

He admits that PW-4 Kundalik Yellari was also found firing in the

post-lunch session. However, PW-4 - Kundalik Yellari testified that

he had asked the applicant accused to prepare a details of 4 cadets,

who would be asked to practice fire at the firing range. He further

testified that PW-7 Colonel Khosala briefed the students about the

firing and thereafter provided 0.22 rifles to the cadets. One

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Hawaldar Mr. Mane then provided 10 rounds each to all the four

cadets. The students were asked to remain in lying position and

thereafter they started firing. The evidence further indicates that at

the relevant time the applicant - accused was standing behind the

firers. This witness noticed the applicant firing with 0.22 rifle.

This witness had asked the applicant not to fire till the four of the

cadets completes their firing, however, the applicant started firing

from 0.22 rifle. According to this witness, cadet no.2 (victim) gave

a signal of completing the firing by raising his hand when suddenly

this witness heard somebody shouting " pyks mBks cl vk x;h". Cadet

at Sr. No.2 (victim) suddenly got up and turned behind when the

applicant was firing 0.22 rifle which hit left side of the victim's

forehead. The cadet collapse on the ground. The applicant-

accused took the cadet on his lap and pressed his hand on the

wound. This witness categorically deposed that despite asking the

applicant - accused not to fire, he opened fire from 0.22 rifle when

in fact, he was not authorized and instructed to fire.

12. There is no dispute that the round which hit the victim was

fired from a rifle Butt No.2K05223 (Article A). It is also not in

dispute that the said rifle was given to the Police on 1 st February,

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2013 itself in a sealed condition after the seizure panchanama.

PW-7 Colonel Khosala, who is a quite Senior Officer in the Army,

was posted as a Commanding Officer 1, Maharashtra Signal

Company, NCC, Pune at the relevant time. He too, in his

examination-in-chief testified that when he rushed to the scene of

occurrence and asked the applicant as to what had happened to

which the applicant replied that the cadet was injured by his

mistake. From the evidence of the prosecution witnesses, it appears

that it was the applicant because of whose negligence, the victim

died due to a gun shot injury suffered by him. The applicant fired

0.22 rifle in a standing position behind the victim.

13. The learned Counsel for the applicant emphasized that the

evidence of witnesses on the aspect of seizure of rifle creates a

doubt in light of the defence raised by the applicant that the victim

sustained gun shot injury from a 0.22 rifle, which was fired by PW-

4 Kundalik Yellari and not by him. Learned counsel argues that

despite seizure of the rifle by the Police, it was not immediately

handed over by PW-7 Colonel Khosala which was kept in their

store room and handed over subsequently. Possibility of shielding

PW-4 Kundalik Yellari, being an Army personnel by PW-7 Colonel

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Khosala cannot be ruled out.

14. PW-7 Colonel Khosala testified that the police had been to the

unit area to take possession of the rifle which was seized by the

police in the presence of panchas and was sealed and stamped.

However, for want of sanction from the higher authorities,

according to this witness, the rifle was not immediately handed over

to the police on the same day. It was kept in a room where the

weapons are stored. According to the learned Counsel, this creates

a doubt as to whether PW-7 Colonel Khosala had handed over the

0.22 rifle from which the round was fired by the applicant or

another 0.22 rifle used by PW-4 Kundalik Yellari in view of the fact

that the Inquiry Officer PW-16 P. Saravanan admitted that PW-4

Kundalik Yellari was also found firing in the post-lunch session in

order to exhaust all the remaining 100 rounds.

15. Evidence of PW-14 Kutubuddin Mulani, working as Assistant

Director at Forensic Science Laboratory, Kalina, Mumbai would be

important in ascertaining as to whether the bullet which hit the

victim was in fact fired from the rifle seized from the spot. His

evidence reveals that on 25th February, 2013 he received one sealed

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parcel and three sealed envelopes from the Deccan Police Station,

Pune. He examined the rifle (Exh.1) which was of 0.22 caliber

and was in working condition. It was test fired. He testified that

along with the said rifle live cartridges were not sent by the

Investigating Agency. He, therefore, test fired one cartridge from

the said rifle from its laboratory stock. It was successfully test

fired. He had also examined fired bullet (Exh.2) under microscope.

Taking into consideration the evidence of the ballistic expert, it is

quite apparent that it was fired from the rifle which was seized by

the Investigating Officer at the relevant time.

16. PW-1 Aman Modi and PW-2 Kshitij Malvankar were the

students studying in Loyla School at the relevant time and had been

to firing range for firing practice through 0.22 rifles at the NCC

Headquarter at Senapati Bapat Road, Pune. PW-1 Aman Modi

testified that in the post-lunch session, the fire practice started. PW-

2 Kshitij Malvankar was given the first target while second target

was given to the victim - Parag Ingale. This witness was at the 3 rd

position and at the 4th position there was a student by name Jai

Kakani. All of them were in lying position and firing at their

respective targets. He categorically deposed that applicant was

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behind them but he did not know his exact position behind them.

He heard some sound "what happened" and when he looked

behind, victim - Parag Ingale was on the lap of the applicant and

blood was oozing from his head. PW-2 Kshitij Malvankar

supported the evidence of PW-1 Aman Modi in material particulars

as regards occurrence of the incident. According to him, one of the

cadets namely Steve shouted "pyks mBks cl vk x;h", upon which

victim - Parag Ingale suddenly got up and the bullet hit left side of

his forehead. He testified that he came to know that the bullet was

fired by the applicant. When victim fell down, applicant had put

his hand to restrict the blood oozing from his head. His evidence

further reveals that he was aware of the fact that the applicant was

firing from behind the victim.

17. Learned APP, on the other hand, strongly opposed release of

the applicant on bail by suspending execution of the sentence in

view of the evidence of PW-7 Colonel Khosala, PW-4 Kundalik

Yellari, PW-1 Aman Modi and PW-2 Kshitij Malvankar who had

categorically testified against the applicant.

18. Learned APP has also invited my attention to the testimony of

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PW-5 Manohar More, who was NCC Cadet Instructor in 1,

Maharashtra Signal Company Pune and was present at the time of

incident. The sum and substance of his evidence is that after PW-4

Kundalik Yellari had provided 0.22 rifles to the four cadets, he had

tendered 10 rounds to each of the cadets for firing practice. He

categorically deposed that at the relevant time, the applicant was

standing with one 0.22 rifle in his hand in a firing position. He

suddenly heard a commotion and noticed that blood was oozing

from the head of the accused. The bullet had hit the head of that

cadet. According to this witness, while taking the cadet to the

hospital, applicant told him that while firing from 0.22 rifle the

bullet had hit the head of that cadet.

19. Learned APP could not point out any exceptional

circumstances refusing suspension of execution of the sentence. It

is evident from the aforesaid discussion that though the applicant

was negligent who was not authorized to open the fire had opened,

resulting into the death of the victim, he could not anticipate that

the victim would suddenly get up. It is also apparent from the

record that the victim suddenly got up in response to the shouts

behind "pyks mBks cl vk x;h" resulting into the tragic incident.

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20. Learned Counsel for the applicant then submits that in light

of various discrepancies in the evidence of the prosecution

witnesses, especially the fact that PW-4 Kundalik Yellari was also

found firing at the relevant time and in the absence of cogent

evidence as regards to the rifle used in firing the round resulting

into the death of the victim, the applicant may not be allowed to be

incarcerated till the appeal is finally heard. He also submits that

the applicant is not a flight risk who had attended the trial and has

also deep roots in the society being permanent resident of Pune. He

further submits that the applicant undertakes to bind himself by any

condition which would be imposed by this Court, if his application

is allowed. Considering the evidence on record as well as the

argument of the learned Counsel for the applicant, I do not find any

exceptional circumstance to refuse the prayer.

21. This being the appeal of 2023, the possibility of it being heard

in near future would be quite difficult. There are no previous

antecedents against the applicant.

22. Learned Counsel for the applicant has placed reliance on a

judgment of the Supreme Court in case of Satyendra Kumar Mehra

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alias Satendera Kumar Mehra Vs. State of Jharkhand 1 and invited

my attention to paragraph 36 of the judgment, which reads thus :-

"36. We, however, make it clear that the appellate court while exercising power under Section 389 Cr.PC can suspend the sentence of imprisonment as well as of fine without any condition or with conditions. There are no fetters on the power of the appellate court while exercising jurisdiction under Section 389 CrPC. The appellate court could have suspended the sentence and fine both or could have directed for deposit of fine or part of fine."

23. It is clear from the observations in the said judgment that the

appellate court while exercising power under Section 389 of the

Cr.P.C. can suspend sentence of imprisonment as well as the fine

amount without any condition or with condition. It is clear that the

appellate court has no fetters while exercising its jurisdiction under

Section 389 of the Cr.P.C. by directing the appellant to deposit the

fine or part of the fine.

24. Having considered the aforesaid facts and circumstances of

the case, without expressing any opinion on merits / demerits of the

case, I do not see any reason not to suspend the execution of the

sentence, pending the appeal and to release the applicant on bail.

1 (2018) 15 SCC 139

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25. In view of the above observations, the following order is

expedient :-

ORDER

(i) Pending the appeal, execution of the sentence is

suspended on the applicant executing a P.R. bond in the sum

of Rs.30,000/- with two sureties in the like amount to the

satisfaction of the Registrar Judicial of this Court as well as

deposit of an amount of Rs.4,00,000/- (Rupees Four Lacs

only) in the Registry of this Court towards compensation to

be paid to the parents of the victim.

(ii) The applicant shall attend the concerned police station

once in every 15 days between 10.00 a.m. to 12.00 noon.

(iii) If the applicant commits two consecutive defaults in

attending the police station, the prosecution will be at liberty

to pray for cancellation of his bail.