Bombay High Court
Parvati @ Shushila Shankar Madavi vs State Of Mah. Thr. Pso Ps Bhamragad ... on 30 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10212
224. cr.apeal.340.2022 .jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 340 OF 2022
Parvati @ Shushila Shankar Madavi,
Aged about 29 yrs,
R/o. Madveli, Tal Bhamragad,
District Gadchiroli, Presently lodged
at Nagpur Central Prison, .... APPELLANT
Nagpur- 400 020
(Accused in Jail)
// V E R S U S //
State of Maharashtra,
Through Police Station Office,
Police Station, Bhamragad,
Th. Bhamragad, District Gadchiroli ... RESPONDENT
----------------------------------------------------------------------------------------------
Mr. H. P. Lingayat, Advocate for the appellant
Mr H. S. Dhande, APP for the respondent/State
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 30/08/2024
ORAL JUDGMENT :
1 In this appeal, the challenge is to the judgment and
order, dated 16.02.2021, passed by the learned Additional
Sessions Judge, Gadchiroli, whereby the learned Judge
convicted the accused for the offences punishable under
224. cr.apeal.340.2022 .jud..odt
Sections 307, 353, 148 read with Section 149 of the Indian
Penal Code (for short 'the IPC') and sentenced her to suffer
rigorous imprisonment for ten years and to pay a fine of
Rs.10,000/-, in default of payment of fine to suffer rigorous
imprisonment for three months for the offence punishable
under Section 307 read with Section 149 of the IPC, further
sentenced her to suffer rigorous imprisonment for two years
and to pay a fine of Rs.5,000/-, in default of payment of fine to
suffer rigorous imprisonment for one month for the offence
punishable under Section 353 read with Section 149 of the IPC
and she is further sentence to suffer rigorous imprisonment for
three years and to pay a fine of Rs.5,000/-, in default of
payment of fine to suffer rigorous imprisonment for one month
for the offence punishable under Section 148 of the IPC.
2 The facts are as follows:
PW-1 API Amol Nanasaheb Phadtare, is the
informant. He lodged the report on 20.05.2019 at the Police
224. cr.apeal.340.2022 .jud..odt
Help Center, Kothi. The case of the prosecution, which can be
gathered from the report and other record, is that PW-1 was
attached to the Special Task Force, Anti Naxal at Pranhita,
Aheri. PW-3 PSI Nilesh Chavan and PW-5 Police Naik
Ganpat Soyam were attached to Pranhita. PW-4 PSI Vasudeo
Madavi was attached to Kothi Police Help Center. It is stated
that on 20.05.2019, they were doing Anti Naxal drive at
Koparshi Forest Area. The team consisted of 60 police
personnel. They undertook the search operation at Koparshi
Forest area. At that time, suddenly there was a firing upon them
by the naxalites. They were in a dens forest. They took shelter
of the trees and took account of the situation. They were
satisfied that it was an act by the naxalites. The naxalites were
shouting and giving commands to their members. The police
team appealed to the naxalites to surrender. The naxalites,
instead of surrendering, continued indiscriminate firing. The
police party also started control firing in defence. The firing
224. cr.apeal.340.2022 .jud..odt
conducted for 15-20 minutes. On account of the increasing
pressure of the police party, the naxalites ran away in the forest.
The police team took the search of the spot. They found one
pressure cooker, one detonator, wires and blasting material.
They brought the material to the police Help Center, Kothi. It
was seized.
3 PW-1 lodged the report of the incident at the
Police Help Center, Kothi. On the basis of this report, the
crime bearing No. 22 of 2019 was registered against the
naxalites. PW-8 PSI Raghunath Shinde carried out the
investigation. He drew the spot panchanama. He seized the
articles. PW-9 PSI Yogesh Bodhgire arrested the accused in this
crime on 11.01.2020. The accused was already arrested in
Laheri Crime No. 8 of 2017. On the date of the arrest, she was
in judicial custody. PW-8 on completion of the investigation,
filed the charge-sheet against the known and unknown accused.
The appellant/accused was the only accused arrested in this
224. cr.apeal.340.2022 .jud..odt
crime and therefore, she was put on trial. The absconding
accused, in the crime, have not yet been arrested.
4 Learned Judge framed the charge against the
appellant. The appellant pleaded not guilty and claimed to be
tried. Her defence is of total denial and false implication. The
prosecution in order to prove the charge against the appellant
examined nine witnesses. Learned Judge, on consideration of
the evidence, convicted and sentenced the appellant as above.
The appellant is, therefore, before this Court by way of this
appeal.
5 I have heard learned Advocate Mr H. P. Lingayat
for the appellant and learned APP Ms H. S. Dhande for the
State. Perused the record and proceedings.
6 Learned Advocate for the appellant submitted that
the evidence adduced by the prosecution is not sufficient to
224. cr.apeal.340.2022 .jud..odt
prove the charge against the appellant. The appellant was not
known to any of the witnesses prior to the commission of the
crime. Test identification parade was not conducted. The
report lodged by PW-1 is conspicuously silent on the point that
the naxalites were seen by them on the spot. Learned Advocate
submitted that the evidence of the prosecution on the point of
the complicity of the appellant in this crime and her
identification is doubtful. Learned Advocate submitted that all
the witnesses have improved their statements before the Court
and have stated that they had seen the naxalites when they were
firing upon them. Learned Advocate submitted that the
evidence on record is silent as to the date of the arrest of the
appellant in Laheri Crime No. 8 of 2017. In the submission of
the learned Advocate the learned Judge, without any concrete,
cogent and reliable evidence, has convicted and sentenced the
accused. Learned Advocate submitted that from the spot
neither the empties nor the fired bullets were recovered.
224. cr.apeal.340.2022 .jud..odt
Learned Advocate submitted that the indiscriminate firing
between police and naxalites went for 15-20 minutes in the
dense forest. It is submitted that the panchanama is silent
about the presence of the bullet marks on the trunks of the
trees. Learned Advocate submitted that if the police party had
seen the naxalites, then the appellant and co-accused would not
have survived the attack or a firing made by 60 police officers
with sophisticated weapons.
7 Learned APP submitted that the police officers
were part of the police team which was undertaking the special
anti-naxal drive in the area. There was indiscriminate firing on
the police party by the naxalites and therefore, to protect
themselves, the police opened the control firing on the
naxalites. It is pointed out that the evidence of the police
officers is sufficient to prove that despite repeated warnings
given to the naxalites by the police, they did not surrender.
Learned APP submitted that the evidence on record is cogent,
224. cr.apeal.340.2022 .jud..odt
concrete and reliable to prove the incident and the involvement
of the appellant in the said incident. Learned APP submitted
that the witnesses have categorically stated that they had seen
the appellant while firing on the police party. Learned APP, in
short, submitted that the learned Judge has taken the entire
evidence into consideration and on proper analysis of the same,
has recorded the findings against the appellant.
8 I have minutely perused the evidence. The
witnesses are the police officers. At this stage, it is necessary to
mention the undisputed facts. The occurrence of the incident
is not in dispute. The incident occurred in a dense forest. The
naxalites were hiding in the forest. PW-1 and the police team
was conducting the combing operation in the naxalite affected
area. The incident occurred at 7:00 a.m. on 20.05.2019.
Nobody from the police party was injured in the incident.
Similarly, nobody from the naxalite party was either killed or
injured. From the spot, neither the empties nor the fired
224. cr.apeal.340.2022 .jud..odt
bullets were recovered. The panchanama is silent about the
bullet marks on the trunks of the trees. There is a dense forest
on the spot. The distance between the police party and
naxalites on the other side is not mentioned. It was not stated
in the report lodged by PW-1 that he had seen all the naxalites
on the spot. The facts recorded in the panchanama, if
considered in a proper perspective would show that any
evidence of indiscriminate firing by the naxalites and police
party on each other was not found on the spot. The test
identification parade of the appellant was not conducted after
her arrest. The date of her arrest in Laheri Crime No. 8 of
2017 has not been placed on record. The appellant was
arrested when she was in judicial custody in another crime. The
incident occurred on 20.05.2019. The Laheri crime was
registered in 2017.
9 The evidence adduced by the prosecution needs
minute scrutiny in the backdrop of the above stated admitted
224. cr.apeal.340.2022 .jud..odt
facts. Perusal of the evidence of the police officers PW-1, 3, 4
and 5 would show that at the time of lodging of the report and
at the time of recording of their statements they had not stated
that at the time of the incident they had seen the naxalites,
including the appellant. In my view, this statement has been
proved to be an omission. It is therefore apparent that these
witnesses have improved their version before the Court. In my
view, the case of the prosecution and the evidence of the
witnesses cannot be believed.
10 It has come on record that the spot is in dense
forest. The naxalites were hiding in the dense forest. It has
come on record in the evidence of PW-1 and other witnesses
that while doing the search operation at Koparshi forest area,
suddenly there was firing upon them. The firing was done by
the naxalites. They have stated that they took shelter of the
trees and confirmed that the firing was initiated by the
naxalites. They have stated that at that time the naxalites were
224. cr.apeal.340.2022 .jud..odt
shouting and giving commands to the members of their groups
for firing on the police. The witnesses have stated that when
the naxalites did not respond to their appeal to surrender, they
opened the control firing on them in defence. The firing
continued for 15-20 minutes. The naxalites, looking at the
increasing pressure of the police, ran away in the forest. If the
police team had seen any naxalite, then the said naxalite would
not have survived. The police team was comprised of 60 police
personnel. They were carrying sophisticated weapons, arms
and ammunition. If the police had seen any naxalite on the
spot, then the police team members would have riddled the said
naxalite with bullets. It is stated that not a single naxalite was
either injured or dead. Similarly, nobody from the police party
was injured. The facts recorded in the panchanama show that
there was no evidence on the spot about the indiscriminate
firing by two groups on each other. This fact would show that
the evidence of the police officers that they had seen naxalites
224. cr.apeal.340.2022 .jud..odt
on the spot cannot be believed. If the police and naxalites had
fired indiscriminately upon each other, then the empties of the
fired bullets as well as the fired bullets would have been found
on the spot. Some of the bullets would have been found stuck
in the trunks of the trees on the spot. In my view, this is a very
vital circumstance in this case for the purpose of deciding the
credibility and trustworthiness of the evidence of the witnesses.
11 Undisputedly, the test identification parade was not
conducted, after the arrest of the appellant, in this crime. The
police officials identified the appellant for the first time at the
time of their respective evidence. As observed above, the police
officials had not seen the appellant on the spot. The test
identification parade was not conducted. In my view, therefore,
the very basis of their identification of the appellant in the
Court being one of the member of the naxalite team loses its
force. The witnesses have categorically stated that before this
incident they had not seen the appellant. I am conscious of the
224. cr.apeal.340.2022 .jud..odt
fact that the evidence of the test identification parade is not a
substantive piece of evidence. It can be used only as a
corroborative piece of evidence to lend an assurance to the
statements of the witnesses about the identification of the
accused being the perpetrator of the crime at the earliest
opportunity. The dock identification of the accused by the
witnesses in the given case can be sufficient to establish the
identification of the accused. The dock identification of the
accused by the witnesses is substantive piece of evidence.
However, in such a case, the Court has to be very careful and
cautious. The Court must be satisfied that the witness had an
opportunity to see the accused on the spot at the time of the
commission of the crime. The Court must also be satisfied that
the witness has not identified the accused in the Court, being
the perpetrator of the crime, for the sake of supporting the case
of the prosecution. The evidence of identification of the
accused in such circumstances must be beyond doubt. In my
224. cr.apeal.340.2022 .jud..odt
view, the evidence of the prosecution witnesses and the
attending circumstances, as discussed above, are sufficient to
conclude that the appellant was not seen by them on the spot.
The appellant was not known to the police officers prior to the
occurrence of this incident. In the facts and circumstances, the
witnesses were supposed to make a concrete statement for
identifying the appellant in the Court at the time of their
evidence.
12 PW-5 Police Naik Ganpat Soyam, in his cross-
examination, has stated that the police maintain photographs
of the suspicious persons. He has categorically stated that the
photographs of the naxalites are kept at police headquarters.
He has stated that the police obtain photographs of naxalites
from their houses. In his cross-examination, at para No. 3, he
has stated that there was an identification parade of Parvati, the
appellant, at the office of Pranhita Additional S. P. In my view,
the evidence on record is not sufficient to prove the presence of
224. cr.apeal.340.2022 .jud..odt
the appellant on the spot. The evidence is not sufficient to
prove that this witness had seen her on the spot.
13 As stated by the witnesses, the naxalites were firing
by hiding in the dense forest. It is not possible to accept the
evidence of the prosecution that in such indiscriminate firing
by them on the naxalites, the naxalites came in the open and
therefore, they could see them. If the 60 police personnel with
sophisticated arms and ammunition had seen the naxalites
within the range, then they would have riddled those naxalites
with the bullets. In my view, therefore, the evidence on record
is not sufficient to prove the involvement of the accused/
appellant in this crime. The identification of the appellant,
being the naxalite involved in the incident, has not been
proved. The evidence is not at all believable. The account of
the incident narrated vis-a-vis the involvement of the appellant
in this crime is totally unbelievable. The police officers, on
arrest of the appellant in another crime, have involved her in
224. cr.apeal.340.2022 .jud..odt
this case. It is seen that in the report PW-1 has stated the
names of 18 naxalites who had fired on the police. There is no
basis for mentioning these names. It appears that these names
have been stated in the FIR on the basis of the available record
with the police with regard to the naxalites operating in the
area. Learned Judge, in my view, has failed to properly
appreciate the evidence. The evidence is not sufficient to prove
the charge against the appellant. The appellant, therefore,
deserves to be acquitted.
14 The criminal appeal is allowed.
15 The judgment and order of conviction and sentence
of the appellant/accused dated 16.02.2021 passed by learned
Additional Sessions Judge, Gadchiroli for the offences
punishable under Sections 307, 353, 148 read with Section
149 of the Indian Penal Code is quashed and set aside.
224. cr.apeal.340.2022 .jud..odt
16 The appellant/accused is acquitted of the offences
punishable under Sections 307, 353, 148 read with Section
149 of the Indian Penal Code.
17 The appellant, who is in jail, shall be released
forthwith, if not required in any other case.
18 The criminal appeal stands disposed of,
accordingly. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 10/09/2024 17:43:33
