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2013 DIGILAW 1280 (BOM)

Bamu s/o. Deva Miccha v. State of Maharashtra

2013-07-10

M.L.TAHALIYANI

body2013
JUDGMENT The appellant has been convicted by learned Sessions Judge, Gadchiroli in Sessions Case No.15/2011 for the offences punishable under sections 307 and 353 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 500/- for the conviction u/s. 307 and is sentenced to suffer R.I. for one-and-a-half year and to pay a fine of Rs. 500/- for the conviction of offence punishable u/s. 353 of I.P.C. The appellant feels aggrieved by the said judgment on the ground that the judgment is based on the evidence which was not at all reliable. Most of the eye witnesses in this case are Police Officers. The alleged attack was on the Police Officers. 2. Before I proceed to appreciate the arguments submitted on behalf of the appellant and the respondent-State, let me briefly state as to what led to the prosecution of the appellant for the said offences. The complainant in this case was working as Sub-Divisional Police Officer, Bhamragarh in Gadchiroli District. The alleged incident had occurred on 4th July, 2010. The complainant was on patrolling duty on 4th July, 2010. He was accompanied by a C-60 team, headed by Commander Rama Kudiyami and the police personnel belonging to Special Action Force. In all, there were ISO Jawans in the team headed by the complainant. The police party headed by the complainant started from Nargunda village. At about 2.00 p.m., the police party was in the forests of Pidimili and Paddur. The appellant was found concealing himself behind a tree. He was having a handgun known as 'Bharmar'. The police party headed by complainant asked the appellant to surrender. The appellant instead of surrendering before the Police had allegedly fired a shot from the said gun directed towards the police party. Thereafter, the appellant tried to run away from the spot taking advantage of thick forest. He was chased and was caught. The F.I.R. was lodged at Bhamragarh Police Station for the offences punishable u/ss. 307 and 353 of I.P.C. on 4th July, 2010 at about 17.00 hours. During the course of investigation, statements of the witnesses were recorded. Almost all witnesses are from the police party headed by the complainant. Bharmar Gun was sent to the Chemical Analyser. The Chemical Analyser had reported that Bharmar Gun was a single barrel muzzle loading Gun in working condition. During the course of investigation, statements of the witnesses were recorded. Almost all witnesses are from the police party headed by the complainant. Bharmar Gun was sent to the Chemical Analyser. The Chemical Analyser had reported that Bharmar Gun was a single barrel muzzle loading Gun in working condition. The residues of fired Gun powder were detected in the barrel washings of said Gun, indicating thereby that the Gun was used for firing before it was received in the Laboratory. Few percussion caps from Laboratory stock were successfully test fired through the said Gun indicating thereby that the Gun was in a working condition. After completion of investigation, charge-sheet was filed against the appellant. 3. Charge was framed by the learned 2nd Addl. Sessions Judge for the above said two offences, so also for the offence punishable under section 25(1-B) (a) read with 3 of the Arms Act, 1959. The appellant pleaded not guilty and claimed to be tried. The prosecution had in all examined seven witnesses in support of its case. PW 1-Sunil Borekar is the Police Constable; PW 2- Vijaykant Sagar is the complainant who was working as Sub-Divisional Police Officer at the time of the incident. PW 3-Rama was working as a policeman in C-60 force; PW 4-Arun is police constable of C-60 force. PW 5-Babarao Avachar was working as P.S.I. of Bhamragarh Police Station. PW 6 was Additional District Magistrate who had granted sanction for prosecution of the appellant for the offence punishable u/s. 25 (1-B) (a) of the Arms Act. PW 7-Shankar is the Constable who had carried the seized articles to the Forensic Science Laboratory. 4. The most important witness in this case is PW 2-Vijaykant, who was the most responsible Police Officer in the team, heading the team of 150 jawans. He has stated in his evidence that he along with other members were on patrolling duty and on 4th July, 2010. While they were in the jungle of Pidimili and Paddur, one person was noticed to have concealed himself behind a tree around two o ' clock in the afternoon. The PW 2 had asked that person to surrender. The said person refused to oblige and fired at PW 2. The police party also fired in retaliation. That person therefore wanted to run away from the spot. The area was cordoned off and the said person was apprehended. The PW 2 had asked that person to surrender. The said person refused to oblige and fired at PW 2. The police party also fired in retaliation. That person therefore wanted to run away from the spot. The area was cordoned off and the said person was apprehended. He was taken to Bhamragarh Police Station. His personal search resulted in recovery of one knife from his pocket. The FIR was lodged by PW 2 and his report is at Exh. 13 and printed FIR is at Exh.14. Bharmar Gun and knife were seized by the police under the seizure memo Exhs. 15. 5. PW 1-Sunil Borekar has more or less given similar evidence in respect of the incident. PW 1 has, however, stated that he could identify the person apprehended by them. PW 3 has also given similar evidence which corroborates the evidence of PW 1 and 2. This witness has stated nothing about identification of the said person. The evidence of PW 4 is also more or less similar and is silent on the point of identification of the said person. 6. PW 5 was working as P.S.I. of Bhamragarh Police Station. Investigation of crime was handed over to him for further investigation. He had formally arrested the accused involved in the crime. He has identified his signature at the bottom of arrest Panchnama Exh.23. According to this witness, he had also seized the gun and knife from Sub-Divisional Police Officer. The seizure Panchnama in respect of that is at Exh.16 and seizure memos in that respect are Exhs. 15 and 16. PW 6 is the Additional District Magistrate, who granted sanction. He has stated that after verification of all the papers he came to the conclusion that the case was fit for prosecution of the accused-Bamu and, therefore, he accorded sanction at Exh. 39. He has identified his signature in sanction letter Exh. 39. PW 7 is the Police Constable who had carried articles to Forensic Science Laboratory, Nagpur. 7. At the outset, it may be noted here that none of the eye witnesses has identified the appellant in the Court during the course of recording of the evidence. Almost all the witnesses have stated that they had apprehended 'one person'. Only one of the witnesses stated that he could identify the said person. However, the said witness has also not identified the appellant before the trial Court. Almost all the witnesses have stated that they had apprehended 'one person'. Only one of the witnesses stated that he could identify the said person. However, the said witness has also not identified the appellant before the trial Court. As such, there is no evidence at all of any nature to fix the identity of the appellant or, in other words, to say that the appellant was the person involved in the alleged incident of firing at Police force. 8. Reading of examination-in-chief of the witnesses, in fact, gives clear impression that the appellant has been framed in this case. The evidence of witnesses is stereotype. The police believed that appellant was owing allegiance to the Naxalites. The Court has taken note of the fact that in this modern age when the terrorists and other similar elements are using absolutely ultra modem fire arms, the use of obsolete single barrel muzzle gun, which is popularly known as Bharmar is beyond imagination. The weapon appeared to have been planted on the appellant. The view of Court is fortified by other circumstances inasmuch as though the police party was headed by a senior police officer of the rank of SDPO, they had not bothered to seize the used ammunition which was fired from Bharmar Gun. There is no mention of cartridge in the Panchanama or the report of the Chemical Analyser. Apart from this, what is very important to be noted is that though PW 1, PW 2- complainant and other witnesses have stated that they had also opened fire in retaliation, none of the weapons from which firing was done by the witnesses have been seized during the investigation. None of the fired bullets or empty cartridges have been seized by the Investigating Officer from the spot. The evidence of PW 2 and his subordinates that they had opened fire is not acceptable. Had they opened fire in retaliation of the firing done by the appellant, the Investigating officer would have definitely seized the weapons used for firing. 9. In brief, the plain reading of evidence creates serious doubt about the correctness of the prosecution story. The loopholes found in the prosecution case make it certain that the prosecution case is manipulated against the appellant and he has been framed in this case. The learned trial Court had committed gross error in convicting the appellant for the offences punishable u/Ss. The loopholes found in the prosecution case make it certain that the prosecution case is manipulated against the appellant and he has been framed in this case. The learned trial Court had committed gross error in convicting the appellant for the offences punishable u/Ss. 307 and 353 of the IPC. For all these reasons, the Appeal needs to be allowed. Hence, I pass the following order:- ORDER: The Appeal is allowed. The judgment and order dated 23.11.2012 passed by learned Sessions Judge, Gadchiroli in Sessions Case No.15/2011 is set aside. The appellant is acquitted of the offences punishable under Sections 307 and 353 of the Indian Penal Code. He shall be released from prison if not required in any other case. Fine, if any paid by the appellant, shall be refunded to him. Appeal allowed.