Bombay High Court
Mukesh Kushalpal Sharma @ Kabir Hussain ... vs The State Of Maharashtra on 24 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:4393-DB
Gokhale 1 of 29 901-apeal-769-18 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 769 OF 2018
Mukesh Kushalpal Sharma @
Kabir Hussain Noor Islam Suleman Sardar ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 2574 OF 2024
IN
CRIMINAL APPEAL NO. 769 OF 2018
__________
Mr. Kalam Shaikh a/w. Vaishali Sawant for Appellant.
Mr. S. R. Agarkar, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 24 JANUARY 2025
ORAL JUDGMENT: (Per Sarang V. Kotwal, J.)
1. The Appellant has challenged the Judgment and order
dated 04.08.2017 passed by the Additional Sessions Judge,
Dindoshi, Greater Mumbai. By the impugned Judgment, the
Appellant was convicted for commission of the offence punishable
U/s.302 of the I.P.C. He was sentenced to suffer imprisonment for
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.01.30
10:59:05
+0530
2 of 29 901-apeal-769-18 (J)
life and to pay a fine of Rs.5000/- and i.d. to suffer S.I. for six
months. The Appellant was acquitted from the charges of the
offences punishable under sections 385, 386 and 387 r/w. 120B of
the I.P.C., under section 37(1)135 of the Maharashtra Police Act
and under sections 3, 25 and 27 of the Arms Act.
2. The prosecution case, in brief, is that the deceased
Angara Pujari was having a cake shop at Devraj building, Topiwala
road, Goregaon (W). He was receiving extortion calls from the
gangsters. He had not succumbed to their demands. On
19.03.2011, the Appellant entered his shop. Initially, he entered
the shop and left. He again entered the shop within a short time,
had pastries and left. Again he entered the shop and fired a bullet
from close range at deceased Angara. He went out of the shop and
started to run away. The employees of the son of the deceased who
were present in the shop tried to chase him. One of the vendors
nearby threw a wooden plank towards him. It hit him. He fell
down. In the meantime, wireless van of the police was passing in
that area. The police came at the spot. They apprehended him. He
was taken to the police station. He was found carrying a country
3 of 29 901-apeal-769-18 (J)
made pistol and four live cartridges inside the pistol. The deceased
was taken to a hospital. He was declared dead. The son of the
deceased lodged his F.I.R. The investigation started. The police
officers conducted spot panchanama in the shop. An empty was
found in the shop. The Appellant was put under arrest at the police
station. The statements of the witnesses were recorded. The dead
body was sent for postmortem examination. The bullet which was
left in the body was recovered. The pistol, the cartridges, an empty
and the bullet recovered from the dead body were sent for forensic
examination. The investigation was completed and the charge-
sheet was filed.
3. During trial, the prosecution examined 23 witnesses
including the first informant, other eye witnesses from the shop,
the person who threw a wooden plank towards the Appellant, the
police officers who apprehended him near the cake shop, the
Medical officer who had conducted postmortem examination, the
ballistic expert, the panchas and the investigating officer. The
learned Judge believed the evidence of the eye witnesses and other
corroborative pieces of evidence in the form of ballastic expert's
4 of 29 901-apeal-769-18 (J)
opinion, and convicted the Appellant.
4. The Appellant took up a specific defence by giving his
statement U/s.313 of the Cr.p.c. in writing. According to him, two
months prior to the incident, he had come to Mumbai from Delhi
in search of his livelihood. It was his first visit to Mumbai. He was
residing with his relatives at Malad. During his search for job, he
met one Rajubhai, who called him to City Center Mall at Goregaon
(W) and told him that there was a vacancy. He reached there on
the date of the incident. He was on fast on that day. He was
waiting outside the Mall up to 11:00a.m. It was a hot day and
because of hot sun he lost his consciousness and fell down. After
some time, some police officers helped him to regain his
consciousness and took him to the police van. They took him to
Goregaon police station and straightaway put him in the lock-up.
They asked him to sign some documents. They brutally assaulted
him on his legs. On the next day, he was produced before the
Magistrate. While he was in jail, he came to know that he was
implicated in a murder case.
5 of 29 901-apeal-769-18 (J)
5. As mentioned earlier, according to the prosecution case,
there are eye witnesses to the incident. PW-1 Arun Pujari had
witnessed the incident. He was son of the deceased. He has
deposed that, he was running a cake shop. It was in the name of
his father and was styled as 'Harish Enterprises'. It was on the first
floor of Devraj building. His father used to stay in a rented room in
that building. PW-1 used to open that shop at 8:30a.m. and used to
close it at 10:00p.m. There were six employees working in that
shop. Three of them were working in the morning shift and other
three were working in the evening shift. PW-6 Pradeep Parkar and
PW-7 Uday Wanjole used to work in the morning shift. They used
to take keys of the shop from his father and used to open the shop.
His father used to go to the shop at 9:30a.m. and PW-1 Arun used
to reach the shop at around 10:00a.m.
6. In 2009 and 2010 his father received extortion calls from
one gangster for extortion money of Rs.50 lakhs. PW-1 Arun's
father had lodged his report at Goregaon police station on
26.02.2010. After that, again he had received the extortion call
telephonically. It was repeated on other occasions. The calls were
6 of 29 901-apeal-769-18 (J)
received from a foreign location. One of the calls was answered by
PW-1 Arun and he had filed a report to the police. Three persons
were arrested in that matter and it was pending. PW-1 Arun and
his father had deposed in that case.
7. On 19.03.2011, at about 10:00a.m. he had gone to his
shop. His father was on the cash counter. His employees PW-2
Dinanath Monden, PW-6 Pradeep and PW-7 Uday were present in
the shop. At about 11:20a.m. to 11:30a.m. one person between the
age of 27 to 28 years entered their shop. He was chewing gutkha.
He stayed there for some time and then went outside the shop. He
again returned. He bought a chocolate and pastry. He paid the bill
and again went outside the shop. He again returned to the shop
and went towards PW-1's father. He had some conversation. He
then took out a pistol from one plastic bag and fired at PW-1's
father. There was a big noise of bursting crackers. PW-1's father
raised shouts and fell down. The Appellant ran out of the shop.
PW-1 Arun and his employees chased him. He was running
towards the station. He was threatening the people with his pistol.
PW-1 Arun and his employees were raising shouts. One vegetable
7 of 29 901-apeal-769-18 (J)
seller threw a stick towards the Appellant, due to which he fell
down. PW-1 Arun and others caught him. A police vehicle arrived
there and took custody of the Appellant, who was carrying a pistol.
On enquiry, the Appellant gave his name as Mukesh Sharma. The
pistol was an automatic pistol, made in USA and was having a
magazine. PW-1 Arun identified the appellant in the Court who
had fired at his father with the pistol. PW-1 Arun has deposed that
thereafter they took his father to Singhi Hospital, Goregaon, but he
was declared dead. His father had suffered bullet injury in the
front side of his neck. PW-1 Arun then lodged his report with
Goregaon police station. It is brought on record at Exhibit-21.
C.R.No.90 of 2011 was registered at Goregaon police station,
under sections 385, 386, 387 and 302 of the I.P.C. and U/s.3, 25
and 27 of the Arms Act. His F.I.R. is produced on record at Exhibit-
22. PW-1 Arun identified the articles produced in the Court viz. the
pistol and deposed that it was the same pistol which was with the
Appellant.
In the cross-examination, he deposed that he did not
know the gangster who was making those extortion calls. He had
8 of 29 901-apeal-769-18 (J)
never seen that gangster or his photograph. He deposed that he
was not acquainted with the vegetable vendor who had thrown a
stick towards the assailant. He could not describe the bamboo stick
or its size. After the police had taken the appellant with them, he
had returned to his shop and after that, he had gone to Singhi
Hospital. He was there till about 3:00 to 4:00p.m. According to
him, he lodged his report at 3:00p.m. He explained that he gave
the description of the pistol in his F.I.R. because it was shown to
him.
The F.I.R. is produced on record at Exhibit-21 and 22.
It substantially corroborates the evidence of PW-1 Arun. The F.I.R.
was registered at 1:00p.m. on 19.03.2011. The proforma mentions
that the police station was informed about the incident at
11:55a.m. on 19.03.2011.
8. PW-2 Dinanath Monden was working in the said cake
shop. He described the incident of firing on the deceased in the
same fashion as is described by PW-1 Arun. PW-2 added that the
assailant was holding a plastic bag in his hand. He removed a
9 of 29 901-apeal-769-18 (J)
pistol from that plastic bag and fired at the deceased Angara. He
then ran away from the shop. Angara raised shouts. PW-2 himself,
PW-1 Arun and PW-7 Uday chased that person. One cobbler threw
a bamboo stick towards the assailant which hit on his hand and he
fell down, and his pistol also fell from his hand. The people in that
area caught him. The police arrived at that spot and took him in
their custody. They went to the police station. The police recorded
his statement. The bullet had hit Angara's shoulder. He was taken
to Singhi Hospital. PW-2 Dinanath also identified the appellant
before the Court.
In the cross-examination, he deposed that, when the
Appellant fired at the deceased, he was facing towards the
deceased and at that particular moment, PW-2 had not seen his
face. There is hardly any cross-examination of this witness.
9. PW-6 Pradeep Parkar was another employee working in
the shop. He has also deposed about the incident. He has
supported the description of PW-1 Arun and PW-2 Dinanath. He
further deposed that, PW-7 Uday, PW-2 Dinanath and PW-1 Arun
10 of 29 901-apeal-769-18 (J)
chased the Appellant after the firing incident. They caught him and
brought him to the shop. Angara was taken to Singhi Hospital at
Goregaon, but he was declared dead. PW-6 also identified the
appellant in the Court. He identified the pistol as Article-A
produced in the Court.
In the cross-examination, he deposed that, there were
2 to 3 customers present in the shop at the time of the incident.
The shop was of the size 25ft x 25ft. At the time of incident, he
was using a laptop for receiving orders. He denied the suggestion
that he had not seen the face of the assailant. He further added
that he identified the appellant when first time he had attended
the Court. He had seen the appellant when he had attended the
Court. The Appellant was brought to the shop after he was caught
by PW-7 Uday and PW-2 Dinanath. He further deposed that, they
took the deceased to Hospital within two minutes after he had
fallen down. PW-6 further deposed that, he could not explain as to
why his police statement does not mention that PW-2 Dinanath
and PW-7 Uday had caught the appellant and had brought him to
the shop.
11 of 29 901-apeal-769-18 (J)
10. PW-7 Uday Wanjole was another employee working in
the cake shop. He again described the incident in the same manner
as is deposed by PW-1 Arun, PW-2 Dinanath and PW-6 Pradeep. He
saw the Appellant firing at the deceased and running away. He has
described that, a vegetable vendor sitting outside the shop threw a
wooden stick towards the appellant, therefore, the Appellant fell
down. The appellant was threatening the people with the pistol. At
that time, a police van came there and police apprehended the
appellant. He gave his name as Mukesh Sharma. PW-7 and others
took Angara to Singhi Hospital, but he was declared dead. PW-7
also identified the Appellant before the Court. He identified the
pistol shown to him as Article-A.
In the cross-examination, he deposed that, it was the
Holi festival day on the day of the incident. They chased the
Appellant for around 50 meters. The vegetable vendor threw a
wooden stick which was around 2-3ft. long. Besides that, there is
nothing much further in the cross-examination.
11. PW-10 Suresh Savardekar is the person who had thrown
12 of 29 901-apeal-769-18 (J)
a wooden stick towards the appellant. He deposed that, he was a
cobbler and used to sit on the footpath in front of Lalit Hotel,
Topiwala wadi. On 19.03.2011, at around 12:00p.m. he saw some
people were chasing one person who was holding a pistol. He
looked frightened. PW-10 threw a wooden plank on him. He fell
down. He rose again and tried to run away. At that time, the police
came there and caught him. PW-10 identified the Appellant in the
Court. He also identified the pistol.
In the cross-examination, he deposed that the shop of
the deceased was at a distance of 10 minutes walk from the place
where he used to sit. His place of working was about 15 minutes
walk from the station. He hit a wooden plank from the distance of
about 5 to 7ft. It hit the appellant on the leg. He fell down. His
pistol was dropped from his hand. The police recovered the pistol
from the spot. He denied the suggestion that the police had shown
him the appellant.
In this context, PW-11 ASI Pradeep Sawant and PW-14
Police Naik Suresh Sawant are important, because they had
13 of 29 901-apeal-769-18 (J)
apprehended the appellant.
12. PW-11 ASI Pradeep Sawant was attached to Goregaon
police station. He was on a mobile van duty from 9:00a.m. to
9:00p.m. There were three other police personnel with him. At
about 11:55a.m. he received an information from the main control
room that one person was lying in injured condition near the City
Center Mall. He went towards the spot at around 12:00p.m. At
that time, one person holding a pistol was seen running towards
the station through bhajigalli, topiwala lane. He was threatening
the people. The people were running helter-skelter. PW-11 and
others chased him. One person hit the person with the pistol, with
a wooden plank. He fell down. PW-11 and others then caught him.
PW-11 snatched the pistol from his hand. It had four live
cartridges. PW-11 enquired about his name. He gave his name as
Mukesh Sharma. On further enquiry, PW-11 came to know that the
Appellant had fired a bullet on one shop owner. Therefore, PW-11
took him in custody and took him to the police station. PW-11's
duty officer was informed. The Appellant and the pistol were
handed over to the duty officer. He identified the pistol and four
14 of 29 901-apeal-769-18 (J)
live cartridges in the court.
In the cross-examination, he deposed that, on receipt
of the information from the control room, he used to take entry in
the diary which he carried. They were at a distance of 20ft to 25ft.
from the Appellant when he fell down. They apprehended him
when he got up. He deposed that the pistol did not drop from the
hands of the appellant. He then informed the police station and
the control room that he had apprehended the Appellant. He took
entry in his diary. There were no special marks on the pistol or
bullets for their identification. He denied the suggestion that they
planted the said pistol in this offence. He could not assign any
reason as to why his police statement did not mention that he
came to know from the people that the appellant had fired a bullet
at the shop owner.
13. PW-14 Police Naik Suresh Sawant has deposed on the
same lines as PW-11 ASI Pradeep Sawant. In the cross-
examination, he deposed that, at the first instance, the public had
caught the appellant. The place of the incident was at some
15 of 29 901-apeal-769-18 (J)
distance from the railway station.
14. In this same sequence, the evidence of PW-18 API Uttam
Dundale would be important. He was attached to Goregaon police
station. He was on duty as Police Station Officer on 19.03.2011
between 8:00a.m. to 8:00p.m. At about 11:00a.m. he received an
information from the control room that there was an incident of
firing at the cake shop. He himself and other police officers
reached there. They came to know that the owner of the cake shop
was fired at. He was taken to Singhi Hospital. PW-18 went to that
hospital, but PW-18 came to know that the shop owner had
succumbed to his injuries. PW-18 then recorded the statement of
PW-1 Arun. It was treated as the F.I.R. It was produced on record,
as mentioned earlier, at Exhibit-21 and 22. PW-18 then conducted
the inquest panchanama. He seized the clothes of the deceased. He
sent the dead body for postmortem examination. He then again
went to the spot of incident in the shop and prepared the spot
panchanama. It is produced on record at Exhibit-30. He called the
photographer to take the photographs. He found an empty of the
cartridge from the spot. It was seized. It is marked as Article-D. In
16 of 29 901-apeal-769-18 (J)
the meantime, the person who was caught by the public and the
police was brought to the police station. He then arrested the
Appellant and prepared the arrest panchanama. It is produced on
record at Exhibit-32. The Appellant was in possession of pistol and
four live cartridges. He then seized the clothes of the Appellant.
The seizure of clothes panchanama is produced on record at
Exhibit-92. He identified the Appellant produced on the video
conferencing in the Court.
In the cross-examination, he deposed that, except slight
abrasion on the right leg below the knee, he did not see any other
injury on the appellant. PW-18 had reached the police station at
about 4:15p.m. At that time, the Appellant was in the detection
room of the police station. His belongings were removed and kept
in the detection room. The police who had brought the Appellant
were from the police mobile van. He did not make any attempt to
trace out the bamboo stick. It is not recovered in this case. The
arrest panchanama shows that there was swelling on the feet of
the Appellant. But, the cause was not mentioned.
17 of 29 901-apeal-769-18 (J)
15. PW-4 Ajit Kanthak was a pancha for spot panchanama.
While conducting the spot panchanama, an empty was recovered.
PW-5 Kamlesh Shetty was a pancha for arrest panchanama and
seizure of pistol and cartridges panchanama. It is produced on
record at Exhibit-32. It was conducted between 4:30p.m. to
5:30p.m. on 19.03.2011.
16. PW-8 Santosh Ghadigaonkar was a pancha for inquest
panchanama. PW-3 Ashok Bhagat was a pancha for an insignificant
panchanama wherein the Appellant had allegedly shown the place
where the plan was hatched. But since nothing was recovered from
that place, that panchanama was not of any importance.
17. PW-9 ASI Arvind Kadam was handed over the clothes of
the Appellant and the deceased for carrying them to the Chemical
Analyzer's office. He carried those packets.
In the cross-examination, he deposed that, he was a
store keeper in the police station.
18. PW-13 Keshav Kotiyan was a neighboring shop owner.
He had received an extortion call after this incident. His evidence
18 of 29 901-apeal-769-18 (J)
does not throw any light on the present incident in question.
19. PW-12 Suresh Gaikwad was the photographer. He
deposed that, he was called by the police to take the photographs
at the cake shop. He took the photographs in that area and in the
shop. He identified the photos which were produced at Article-E.
He deposed that, he took 6 to 7 photographs of the dead body in
the shop. He added that the dead body was lying on the chair of
the cashier. Thereafter he went to the Hospital to take the
photographs of the dead body. He took 7 to 8 photographs of the
dead body. They were produced at Article-I.
In the cross-examination, he admitted that he did not
remember the time when the police officers had called him.
20. PW-17 Rajendrapratap Verma was a pancha for seizure
of the Appellant's clothes. That panchanama is produced on record
at Exhibit-92.
21. PW-20 Head Constable Ravindra Bhosale was examined
on the point of publishing prohibitory order from carrying the
prohibited arms. PW-21 Nikhil Pawar was examined as a person
19 of 29 901-apeal-769-18 (J)
who knew the appellant. PW-22 P.I. Raju Kasbe had conducted
some part of the investigation. He had filed the charge-sheet.
PW-23 Satpal Lahot was examined to establish background of the
appellant. These are some additional witnesses.
22. Two other important witnesses are PW-16 Dr. Sunny
Khandare who had conducted postmortem examination. There
were four injuries, out of which, first injury was a circular entry
wound situated 16cm from tip of right shoulder, 2cm. from middle
of neck and 6cm. from sternal notch. Circular fire arm entry
wound was 1cm. in diameter located on anterolateral side of right
side of neck. Blackening was present around the entry wound. On
dissection it was seen that the bullet had passed through the skin.
There was internal injury corresponding to this entry wound. The
fire arm injury had extended on the upper lobe of the left lung.
The opinion regarding cause of death was "Hemorrhage and shock
due to firearm injury". The blackening of the injury around the
entry wound indicated that the injury was caused from the close
range. A bullet was retrieved from 5th intercostal space of back side
of the trunk.
20 of 29 901-apeal-769-18 (J)
In the cross-examination, he deposed that, he
conducted autopsy with his senior Dr. Bhise. In his presence, Dr.
Bhise had extracted the bullet from the body. Four articles were
sent to chemical analysis along with four forwarding letters.
23. PW-15 Shyamsundar Munj was examined as an expert.
He was working as Assistant Chemical Analyzer in Government
Forensic Lab, at Mumbai. He received a pistol with magazine
having crude markings mentioning AUTOMATIC PISTOL, MADE IN
USA 7.65. He also received four intact KF 7.65 mm pistol
cartridges. He received one KF 7.65 mm pistol empty. He received
clothes of the Appellant and the deceased. This witness was
allotted this case by the Head of the Ballistic Department. On
examination, he came to the conclusion that it was a country made
pistol, it was in working order, it was capable of chambering and
firing 7.65 mm pistol cartridges. Residue of fired ammunition -
nitrite was detected in the barrel washing of the pistol showing
that the country made pistol was used for firing prior to its receipt
in the laboratory. They carried out necessary examination by firing
through the country made pistol and came to the conclusion that
21 of 29 901-apeal-769-18 (J)
the pin impression examined under the comparison microscope, on
the empty tallied with that of the test fired bullet from the same
country made pistol. It means that the 7.65mm pistol empty
received by their office was fired from the same country made
pistol received by them. The marks on the fired 7.65 mm bullet
received from the J. J. Hospital under letter tallied with the test
fired bullet from the said pistol and, therefore, he reached the
conclusion that the said bullet sent by the hospital was also fired
from the said country made pistol. Accordingly, the report was
sent.
In the cross-examination, he deposed that, after one
bullet was fired then the next cartridge automatically comes in the
firing chamber of the gun. The C.A. reports are produced from
Exhibit-106 to 108 which show that there was human blood of 'B'
group on the clothes of the accused, but the blood group on the
clothes of the deceased was inconclusive. The ballistic report was
produced at Exhibit-15.
This, in short, is the evidence led by the prosecution.
22 of 29 901-apeal-769-18 (J)
24. Learned counsel for the Appellant made the following
submissions:
The entire case will have to be looked at from the point
of view of the defence taken by the Appellant in this case. PW-11
ASI Pradeep and PW-14 Suresh Sawant have deposed that, they
had received a message from the control room and thereafter they
had started. Therefore, it was not possible that they could reach
the spot where the appellant was caught, within a short time;
because, according to the prosecution witnesses, after the incident,
the appellant was caught at a very short distance, and even if, in
the meantime, the police were informed, it would have taken some
further time for PW-11 and PW-14 to reach the spot. PW-18 Uttam
Dundale has deposed that, he received the information at about
11:00a.m. about the firing which is contrary to the prosecution
case. There is contradiction between the eye witness viz. PW-1
Arun and his employees. PW-10 Suresh appears to be a got up
witness. PW-6 Pradeep Parkar has deposed that the Appellant was
brought back to the cake shop and at that time, he did not have
any weapon. This is contrary to the prosecution case that the
23 of 29 901-apeal-769-18 (J)
appellant was caught at some distance from the shop by PW-11
and PW-14 and then he was taken to the police station. Learned
counsel further submitted that, there was a possibility that PW-1
Arun himself could have planned murder of his own father for
some unknown reason or for the property. All the alleged eye
witnesses are the interested witnesses and the employees had to
support PW-1 Arun. There is no corroboration to their evidence.
There is a contradiction as to from which spot pistol was
recovered. Therefore, it appears that the pistol was planted. The
evidence of photographer is very significant, because he has
deposed that the deceased was on the chair at the cashier counter
when he took the photographs. When PW-18 Uttam had gone
inside the shop on the first occasion, he had not recovered any
empty, but when the spot panchanama was conducted, that empty
was seized. There is no reference as to from where that plastic bag
was carried by the appellant from which the pistol was taken out.
The witnesses have described the weapon as a foreign made
weapon, but the ballistic expert says that it was a country made
pistol. It is not explained as to how PW-11 and PW-14 came to
24 of 29 901-apeal-769-18 (J)
know that there were four live cartridges. There is a contradiction
in the evidence of the eye witnesses, and PW-11 and PW-14 as to
from where the pistol was seized. After firing, the next bullet
naturally springs in the firing chamber of the pistol, but in this
case, it was not so. The articles were sent belatedly for chemical
analyzer's examination. Tutoring of the witnesses for the test
identification parade cannot be ruled out. There is no evidence of
any conspiracy, though, the prosecution case was specific that the
deceased was murdered for extortion purpose which was a result
of a conspiracy initiated by a gangster.
25. Learned APP, on the other hand, relied heavily on the
evidence of the four eye witnesses and in particular, evidence of
the ballistic expert.
26. We have considered these submissions. We do not find
any material discrepancy or contradiction between the evidence of
eye witnesses. They have consistently deposed about the actual
incident of firing in the shop. They have described as to how the
Appellant had entered the shop, had gone out, had come back
25 of 29 901-apeal-769-18 (J)
again and had fired at the deceased. They are also consistent about
the eye witnesses chasing the assailant who was running towards
the station. The evidence of PW-11 Pradeep Sawant and PW-14
Suresh Sawant does not run contrary to the prosecution case. They
had received an information about some person lying near the City
Center Mall and, therefore, they were proceeding towards that
mall. But, in between, they came to the spot where this chase was
going on and they immediately apprehended the assailant.
Therefore, there is no substance in the arguments that the time
since when they received the information and the time when they
reached the spot do not match. PW-11 and PW-14 were going
towards the City Center Mall on receipt of some other information.
That information was not in respect of firing at the cake shop.
They just happened to pass from that area, they saw the chase and
they apprehended the appellant. Therefore, there is no discrepancy
in the time. As far as, PW-18 Uttam saying that he had gone to the
shop on receiving the information at around 11:00a.m., obviously,
this is just an error on his part; because, according to the first
informant himself the incident had taken place after 11:30a.m.
26 of 29 901-apeal-769-18 (J)
This minor discrepancy does not go to the root of the matter. The
other discrepancy about the appellant being brought to the shop
has also not much relevance. The fact remains that the appellant
was chased and then caught. PW-11 and PW-14 had come at the
spot and they had overpowered the appellant. The other people
from the area were scared because the appellant was wielding the
pistol.
27. In this context, evidence of PW-10 Suresh is important.
We do not find any discrepancy or infirmity in his evidence. He
was an independent witness. He was not under any obligation of
PW-1 Arun. In fact, because of his efforts the appellant could be
caught. Though, the photographer says that the photographs were
taken in the shop and the deceased was on the chair, the
photographs produced in the Court did not support any such
deposition. The photographs, in fact, show that the photographs of
the dead body were taken in the hospital. The other photographs
are about the general situation in the shop. There is no further
cross-examination of the photographer on that aspect. The
evidence of the eye witnesses carries much more weightage than
27 of 29 901-apeal-769-18 (J)
the stray statement made by the photographer.
28. In this case, one of the most important pieces of
evidence is the evidence of the Doctor and the ballistic expert. As
mentioned earlier, an empty was recovered from the spot. Though,
PW-11 ASI Pradeep Sawant at the first instance did not seize any
empty, his purpose of visit to the shop was to see the deceased and
to take information about the incident. On the next occasion, he
specifically visited the shop for carrying out the spot panchanama
and at that time, the shop was minutely observed. At that time the
empty was found. Therefore, we do not find any substance in the
arguments that the empty could not be recovered at the first
instance itself. This empty of the cartridge was sent to ballistic
expert for examination. Along with that empty, the bullet left in
the dead body which was retrieved by the Doctor was also sent.
Importantly, the evidence shows that the said bullet and the empty
was fired from the same pistol. This is a very important piece of
evidence which connects that particular empty and the cartridge
with the pistol recovered from the appellant. Though, the witness
says that pistol shows mark 'MADE IN USA', the expert had opined
28 of 29 901-apeal-769-18 (J)
that it was a country made pistol and it was only marked
mentioning 'MADE IN USA'; that does not make it a foreign made
weapon. It is not possible to hold that the pistol was not recovered
from the appellant. The theory that PW-1 Arun had engineered
murder of his father, is totally unbelievable. No such base is made
out and it is not even probable. Though, it is the duty of the
prosecution to prove its case beyond reasonable doubt, if such
arguments are advanced, there has to be some basis to make the
defence probable. But in this case there is no such basis.
29. The sum and substance of this discussion is that the
prosecution has proved that the appellant had fired on the cake
shop owner, he ran away from the shop, he was chased by PW-1
Arun and others. PW-10 Suresh threw a wooden plank at him
because of which he fell down. At that point PW-11 and PW-14 had
arrived at the spot, they caught the appellant with the pistol. The
articles were sent for examination. An empty was recovered from
the spot and the bullet was retrieved from the dead body. The
bullet and the empty matched with the pistol. The Appellant was
caught from near the spot immediately after the incident. All the
29 of 29 901-apeal-769-18 (J)
eye witnesses have identified the appellant in the Court. They have
had sufficient opportunity to observe his features. Apart from that,
since the appellant was caught at the spot, it was a very strong
circumstance against him.
30. Considering all these factors, we are satisfied that the
prosecution has proved its case beyond reasonable doubt.
Therefore, we do not find merit in the Appeal.
31. The Appeal is accordingly dismissed.
32. With disposal of the Appeal, the interim application is
also disposed of.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
