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2013 DIGILAW 1054 (BOM)

Prabhakar Tukaram Mane v. State of Maharashtra

2013-06-12

R.C.CHAVAN

body2013
JUDGMENT This appeal is directed against the conviction of the appellant/original accused No.2 by the learned Additional Sessions Judge, Thane for offences punishable under Section 307 r/w Section 34 of the Indian Penal Code (for short, "IPC") and Section 27(1) of the Arms Act and sentences of rigorous imprisonment for seven years with fine of Rs. 500/- and three year with fine of Rs. 500/imposed upon him on conclusion of trial of Sessions Case No.603 of 1989 before him. 2. Facts which are material for deciding this appeal are as under: Victim Bhagwan Jagtap was working as a Jailor in Thane Central Prison. The appellant along with two other co-accuser/were lodged in the said prison. About three months prior to• 28-12-1988 there was some commotion in the prison and victim Bhagwan Jagtap is alleged to have chastised the accused by slapping them and asking them to go to their barracks. The appellant and the co-accused were then released from the prison. On 28-12-1988 when Bhagwan Jagtap was relaxing in the verandah of his residential quarters, reading newspaper, at about 2: 15 p.m. three persons came in a Fiat car. They shot at him by firearms in their hands. They also abused him for having behaved in a highhanded manner with prisoners and then fled. Jagtap went to the jail from where he was carried to Civil Hospital at Thane. 105 pellets were removed from his right palm. He was admitted as an indoor patient for a few days. The incident had been reported by another Jailor Randive. The police then came to the hospital and also drew a statement of the victim. The police performed panchnama of the spot, seized incriminating articles from the spot and eventually arrested the accused persons, seized the firearms and other articles from accused No.3 who has been acquitted. Nothing was seized from the present appellant. After completion of investigation, the police sent charge-sheet to the Court of Chief Judicial Magistrate, Thane, who committed the case to the Court of Sessions at Thane. 3. The learned Additional Sessions Judge to whom the case was made over, charged the present appellant as well as the other two co-accused of offences punishable under Section 307 r/w Section 34 of the IPC and Sections 25(1)(c) and 27 of the Arms Act. 3. The learned Additional Sessions Judge to whom the case was made over, charged the present appellant as well as the other two co-accused of offences punishable under Section 307 r/w Section 34 of the IPC and Sections 25(1)(c) and 27 of the Arms Act. Since the accused persons pleaded not guilty, they were put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home the guilt of the accused persons. After considering their evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant and accused No.1 of the aforesaid offences while he acquitted accused No.3 of the offences charged. Aggrieved thereby, only accused No.2, the present appellant, has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Addl. Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the evidence on record. There can be no doubt that PW-l Bhagwan Jagtap, the Jailor, suffered a firearm injury on the incidental day, i.e., 2812-1988. The question is whether the appellant is shown to be the author of the injury sustained by Jagtap. PW-l Jagtap stated in his deposition that on 28-12-1988, at about 2:15 p.m. when he was reading newspaper in the verandah of his house, a blue coloured Fiat car came there, three persons alighted from it, of whom he identified two as accused Nos.1 and 2.All three pointed revolvers at him from the gaps of the door of the quarter and fired at him. He sustained injuries. Accused No.1, not the appellant, is stated to have abused the victim by telling him that the victim was behaving in a high-handed manner with prisoners and therefore had to be taught a lesson. The witness then stated that he went to the jail from where he was shifted to the hospital and the pellets were removed. He sought to prove the statement recorded by the police when he was in the hospital which has been marked by the learned Judge as Exhibit-18 in spite of objection raised by the learned defence counsel. The witness then stated that he went to the jail from where he was shifted to the hospital and the pellets were removed. He sought to prove the statement recorded by the police when he was in the hospital which has been marked by the learned Judge as Exhibit-18 in spite of objection raised by the learned defence counsel. The learned counsel for the appellant is right in submitting that Exhibit-18 could not have been the First Information Report, since the information first in point of time in respect of the incident which had reached the police station is Exhibit-30, the report given by PW-2 Abhiman Randive, a colleague of PW-l Jagtap. Therefore, Exhibit-18 has no evidentiary value and cannot provide any corroboration to the evidence of PW-l Jagtap. 5. The learned counsel for the appellant submitted that the evidence of PW-l Bhagwan Jagtap would show that there was open land of about 10-12 paces in front of his residential quarter beyond which there was a road. The witness had also stated in para 13 of his deposition that there was a loose stone wall of the height of 2-3 feet between his quarter and the road. There were two other quarters adjacent to his residential quarters. He had also stated that his quarter was at a height of there and-half feet from the ground. The learned counsel therefore wondered as to how the witness could have seen the persons alighting from the car on the road in front of his house. As rightly submitted by the learned APP, the very fact that the residential quarter of the witness was at a substantial height from the plinth level would be sufficient to conclude that the person in the quarter could duly see what was happening on the road since the height of the intervening wall was just about 2-3 feet. Therefore, the contention of the learned counsel for the appellant that it would not have been possible for the witness to see the miscreants has to be rejected. 6. The learned counsel for the appellant next submitted that in fact PW-1 Jagtap had no opportunity of seeing as to who had fired at him. He pointed out from para 14 of his cross-examination that the assailants fired three times with a gap of one second each and that then the victim ran away inside the room to save his life. He pointed out from para 14 of his cross-examination that the assailants fired three times with a gap of one second each and that then the victim ran away inside the room to save his life. He, therefore, wonders as to whether the victim could have actually seen the assailants. The learned counsel for the appellant also submitted that the story about a co-accused elaborating reason for the assault could thus be a figment of imagination, since after the firing the victim would have rushed inside his house and could have had no time or opportunity to listen to the elaboration for the assault allegedly given by accused No.1. In any case, the learned counsel submits that the words are attributed to accused No.1 and not to his client and therefore could not have provided any clue for identification of the appellant as one of the miscreants. In my view, the arguments advanced do show that the opportunity which the victim may have had to see the miscreants was too short and therefore unless there is some unimpeachable evidence to show that the identification of the appellant by PW-1 Jagtap is reliable, this evidence in itself would not be sufficient to hold the appellant guilty. 7. Though the incident allegedly took place in broad-day light at about 2:15 p.m. and when PW-1 s residential quarter was in a group of 3-4 quarters within the precinct of the jail, none appears to have seen the incident. PW-2 Abhiman Randive is another Jailor who claims that he was the first person to whom PW-1 Jagtap narrated the incident after coming to the jail. Randive states that Jagtap came to the jail in an injured condition and on his asking as to what had happened, the victim told Randive that some unknown persons had fired at his hand. The learned counsel for the appellant therefore submitted that the first disclosure by the victim to a colleague was that he was fired at by some unknown persons, discrediting the version of PW-1 Jagtap that the appellant was the person who fired at him. The learned counsel for the appellant further submitted that the evidence of PW-2 Randive would show that the entire story about the complicity of the appellant and the other accused in the assault was possibly the figment of imagination of Jail Superintendent Meshram. The learned counsel for the appellant further submitted that the evidence of PW-2 Randive would show that the entire story about the complicity of the appellant and the other accused in the assault was possibly the figment of imagination of Jail Superintendent Meshram. He pointed out that PW-2 Randive stated that the report at Exhibit-30, which Randive had lodged with the police, was prepared by Meshram but was sent to the police station under his signature. He also submitted that he had given the statement before the police as per the say of Meshram. The learned APP submitted that this witness was possibly won over by the defence and therefore had been declared hostile and therefore his evidence should not be accepted in order to discredit the victim PW-1. As rightly pointed out by the learned counsel for the appellant, though the witness was declared hostile, it did not mean that the witness was decidedly lying. He submits that the victim himself had admitted in para 15 of his cross-examination that the victim had not reported about the incident to anyone except PW-2 Randive and therefore Randive's version that the victim told him so about the assault by unknown persons would have to be believed. 8. The learned counsel for the appellant also wondered as to whether the motive sought to be attributed to the appellant and others for assaulting the victim would withstand the scrutiny of truth. He submitted that it was sought to be suggested that about three months prior to the incident some altercation took place in the jail in which PW-1 Jagtap allegedly chastised and slapped the accused. He wondered as to whether this small incident of the victim disciplining the inmates could have resulted in the victim being shot at by the inmates after they were released. He submitted that the attempt to provide a motive for this assault itself shows that the jail authorities were trying to cook up something to level an accusation against the appellant and others. 9. It is worthwhile to note that PWs-3 and 4, Rambachan and Vishwanath, are panchas who have not supported the prosecution. The evidence of PW-5 Chandrashekhar as well as PW-7 Popatrao and PW-8 PSI Ghule about seizures effected do not connect the appellant to the crime. PW-9 PSI More had conducted the investigation. 9. It is worthwhile to note that PWs-3 and 4, Rambachan and Vishwanath, are panchas who have not supported the prosecution. The evidence of PW-5 Chandrashekhar as well as PW-7 Popatrao and PW-8 PSI Ghule about seizures effected do not connect the appellant to the crime. PW-9 PSI More had conducted the investigation. PW-6 Pintayya was residing in the neigh bourhood but had not seen the incident. The prosecution thus rests on the sole testimony of PW- 1 Bhagwan Jagtap. The learned APP submitted that ordinarily an injured witness is unlikely to implicate wrong persons as assailants and therefore generally the Courts have accepted the words of such witnesses. He, therefore, submitted that the evidence of Bhagwan Jagtap may be relied and the conviction of the appellant may be upheld, particularly since the case pertains to assault on a Jailor. 1 have carefully considered this submission. However, since PW- 1 Jagtap himself stated that three shots were fired at him with the interval of one second each, which made him flee inside his house, it is doubtful whether he would have enough opportunity to see the miscreants. This, coupled with the fact that PW-1 himself states that only disclosure about the incident which he made was to PW-2 Randive, who categorically states that PW-1 told him that he had been fired at by some unknown miscreants would show that the names of the appellant and the other miscreants have surfaced after inferences were drawn by Meshram, who has not been examined as a witness. 10. In view of the foregoing, the appeal is allowed. The conviction of the appellant for offences punishable under Section 307 r/w Section 34 of the IPC and Section 27( I) of the Arms Act and sentences of rigorous imprisonment for seven years with fine of Rs. 500/- and three years with fine of Rs. 500/imposed for those offences are set aside. He is acquitted of those offences: Fine, if paid, be refunded. The bail bonds stand cancelled and the sureties discharged. The appeal accordingly stands disposed of. Appeal allowed.