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2014 DIGILAW 729 (BOM)

Tanaji Dadasaheb Sargar v. State of Maharashtra

2014-03-18

A.S.GADKARI, P.V.HARDAS

body2014
JUDGMENT P.V. Hardas, J. 1. The Appellant stands convicted for an offence punishable under Section 302 of the Indian Penal Code (IPC) and Section 3 read with 25(1B) (a) of the Arms and Explosives Act, 1959 (Arms Act) and sentenced to imprisonment for life and to pay fine of Rs.1000/-, in default of which to undergo further RI for 3 years, and RI for 3 years and to pay fine of Rs.500, in default of which to undergo further RI for 3 months, by III Ad-Hoc Additional Sessions Judge, Solapur, by judgment dated 4 July 2005, in Sessions Case No.259 of 2004, questions the correctness of his conviction and sentence. 2. Facts, as are necessary for the decision of this appeal, may briefly be stated thus: (i) PW-11- Assistant P.I. Shrikant Arjun Padole who was attached to Vairag police station and was on duty on 5.8.2004, had received a message on telephone about two persons having fallen down from the motorcycle in front of the bungalow of Sarjerao Mohite and that these persons had sustained injuries, at 9 am. The said message further indicated that before the two riders on the motorcycle had fallen down, there was a loud blast. The message further informed that the injured had been admitted in the Jagdale Hospital at Barshi. On receipt of the said message, PW-11 Asstt. P.I. Padole proceeded to the hospital and learnt that injured Avinash had succumbed to injuries. A report was accordingly scribed at Exhibit 9 of PW-1 Pratapshingh. On the basis of the said report at Exhibit 9, an offence vide Crime No.55 of 2004 under Section 302 of the IPC and under the Arms Act was registered. The investigation of the said crime was entrusted to PW-11 Astt. P.I. Padole. (ii) The appellant was injured and was conscious. The Medical Officer examined the appellant and opined that he was conscious. The appellant was discharged from the hospital on 5.8.2004 and on the same day he was arrested under arrest panchanama at Exhibit 16. The clothes on his person which were found to be blood stained, were also seized. On 5.8.2004, PW-11 Astt. P.I. Padole visited the scene of the incident and in the presence of the panchas, he drew the scene of panchnama at Exhibit 34. He also drew the samples of blood stains which were lying on the road. The clothes on his person which were found to be blood stained, were also seized. On 5.8.2004, PW-11 Astt. P.I. Padole visited the scene of the incident and in the presence of the panchas, he drew the scene of panchnama at Exhibit 34. He also drew the samples of blood stains which were lying on the road. Thereafter a communication was issued to the Tahasildar for drawing the sketch of the incident. Meanwhile, the police station had received an Inquest Panchanama as well as the requisition to the Medical Officer for conducting the postmortem examination. A search was made for the revolver at the scene of the incident. By beat of drum, an announcement was also made that whoever finds a revolver should deposit it in the police station. PW-11 Astt. P.I. Padole thereafter went to the scene of the incident and mowed the grass at the scene of the incident. The revolver, however, was not noticed. On 6.8.2004, he recorded the statements of witnesses. On the same day, PW-1 Pratapsingh produced clothes of the deceased Avinash which were seized under seizure memo at Exhibit 35. (iii) On 7.8.2004, during the custodial interrogation, the appellant expressed his willingness to point out two cartridges which had been kept in a box in the hospital of Dr. Salve. Accordingly, the memorandum of the appellant was drawn in the presence of the panchas at Exhibit 21. The appellant led the police and the panchas to the hospital and produced a box containing two cartridges beneath the bed in the hospital of Dr. Salve. The box and cartridges were seized under the seizure memo at Exhibit 10. On 9.8.2004, during the custodial interrogation, the appellant expressed his willingness to point out three cartridges which had been concealed in the drawer of his shop. Accordingly, a memorandum was drawn at Exhibit 21 in the presence of panchas. The appellant led the police and panchas to his office which was found to be open and produced three cartridges which were seized under the panchanama at Exhibit 25. The blood sample of the accused was drawn and collected. On 10.8.2004, an anonymous message was received that the revolver which was used in the commission of the crime was concealed near the water tank and that it was wrapped in a plastic bag. PW-11 Asstt. The blood sample of the accused was drawn and collected. On 10.8.2004, an anonymous message was received that the revolver which was used in the commission of the crime was concealed near the water tank and that it was wrapped in a plastic bag. PW-11 Asstt. P.I. Padole requisitioned the services of the two panchas and took a search near the water tank. He noticed a revolver which was a country made revolver and empty cartridge in the breech of the revolver. He accordingly seized the revolver under panchanama at Exhibit 18. The motorcycle which was driven by deceased Avinash was examined by a garage owner. The seized property was then referred to the chemical analyzer under requisition at Exhibit 32. Further to the completion of the investigation, a charge-sheet against the appellant was submitted. (iv) The postmortem on the body of the deceased Avinash was performed by PW-14 Dr. Sheetal Gopalkar. PW-14 Dr. Sheetal Gopalkar noticed the following external injuries: “i) Abrasion present over right parietal region 2 cm x 3cm superficial. ii) Abrasion present over left ankle joint on medial aspect 3cm x 3cm iii) Abrasion over left knee joint 3cm x 3cm superficial. iv) Wound of entry present at the level of T-10 and T-11 vertebrea measuring 2 cms in diameter. The edges of wound are directed towards inside of the body with blackish discolouration of the skin. The area around the wound was contused and the probe inserted into the wound the depth of the wound was than 22 cms and the probe was protruding in the epegastric area. The body was dissected to explore the wound and it was found that the wound was through and through causing injuries to verterbrea, spinal cord, right lobe of liver and disphragm on inspection the wound of exit was found in the epigastric area, 1 cms in diameter the edges of wounds are directed outwards.” During the internal examination, Dr. Sheetal noticed internal injury i.e. fracture vertebrae T10 and T11. She opined that all the injuries were antemorotem in nature. She had also noticed there was ruptured of right lobe of liver. She had opined that the cause of death was due to shock due to injury to the spinal cord and other internal organ. The postmortem report is at Exhibit 43. She opined that all the injuries were antemorotem in nature. She had also noticed there was ruptured of right lobe of liver. She had opined that the cause of death was due to shock due to injury to the spinal cord and other internal organ. The postmortem report is at Exhibit 43. (v) On committal of the case to the Court of Sessions, the Trial Court vide Exhibit-3 framed a charge against the appellant for an offence punishable under Section 302 of the IPC and and Section 3 read with 25(1B)(a) of the Arms Act. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 14 witnesses. The defence of the appellant was of denial. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellant as afore-stated. 3. In order to effectively deal with the submissions advanced before us by Mr. Nitin Sejpal, the learned Counsel for the Appellant and Mr. H.J. Dedhia, the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 4. Prosecution unfolds its case through PW-1 Pratapsingh, cousin of deceased Avinash. According to PW-1 Pratapsingh the deceased Avinash was son of his uncle Navnath and Avinash was residing along with his father at Manegaon. Prior to the incident, the appellant was residing in a room on the first floor of the house. The appellant was employed as a goldsmith. According to PW-1 Pratapsingh, he owns a motorcycle bearing registration No.MH-13/3309. According to PW-1 Pratapsingh, he and deceased Avinash used to ride the said motorcycle. It appears that once i.e. on 3.8.2004, the appellant had started the motorcycle without the consent of Avinash and accordingly deceased Avinash had slapped the appellant. Thereafter, the appellant and Avinash were both pacified by PW-1 Pratapsingh. However, the appellant continued to nurture a grudge and stated that “he would see Avinash”. On 5.8.2004, PW-1 Pratapsingh was present in the house and was informed by Shrikant (PW-2) that the motorcycle which was driven by Avinash, and on which the appellant was a pillion rider had fallen near the speed breaker. The information was conveyed to PW-1 Pratapsingh that there was a loud explosion before the motorcycle had skidded. On 5.8.2004, PW-1 Pratapsingh was present in the house and was informed by Shrikant (PW-2) that the motorcycle which was driven by Avinash, and on which the appellant was a pillion rider had fallen near the speed breaker. The information was conveyed to PW-1 Pratapsingh that there was a loud explosion before the motorcycle had skidded. Accordingly, PW-1 Pratapsingh had gone to the scene of the incident and had noticed that the deceased Avinash as well as the appellant had fallen from the motorcycle. Deceased Avinash was unconscious at that time. While lifting Avinash, it was noticed that there was injury on his back and the blood was oozing from the injuries. An auto-rickshaw was accordingly stopped and injured Avinash was placed in the auto-rickshaw and taken him to the hospital of Dr. Salve. Dr. Salve examined Avanash and advised that he should be shifted at the hospital at Barshi. The appellant was thereafter brought to the hospital by others. PW-1 Pratapsingh was informed by the Medical Officer that Avinash had succumbed due to the bullet injuries. Accordingly a report against the appellant was lodged at Exhibit 9. 5. In cross-examination, PW-1 Pratapsingh has admitted that he has not lodged any report against the appellant in respect of the threats given by the appellant. He has also admitted that the people who were standing at the scene of the incident had also stated about the hearing of a blast before the motorcycle had skidded. 6. Prosecution has examined PW-2 Shrikant Sankapal who claims that on the day of incident i.e. on 5.8.2004, he had gone for purchasing the coconuts. After purchasing the coconuts, he was returning to house and had noticed Avinash was driving a motorcycle with the accused sitting as a pillion rider. The motorcycle of deceased overtook PW-2 Shrikant and he then saw the motorcycle had skidded and both had fallen from the motorcycle. Just prior to that he had heard a loud blast. He therefore rushed to the house of PW-1 Pratapsingh and informed him about the incident. PW-1 Pratapsingh thereafter rushed to the scene of the incident and injured Avinash was then taken to the hospital. The appellant had also sustained injuries. According to PW-2 Shrikant the appellant was unconscious. In the cross-examination, he has admitted that after purchasing the coconuts, he had noticed the appellant and deceased Avinash going on the motorcycle. PW-1 Pratapsingh thereafter rushed to the scene of the incident and injured Avinash was then taken to the hospital. The appellant had also sustained injuries. According to PW-2 Shrikant the appellant was unconscious. In the cross-examination, he has admitted that after purchasing the coconuts, he had noticed the appellant and deceased Avinash going on the motorcycle. He has admitted that after hearing the noise of a blast, he had noticed that both of them had fallen from the motorcycle. 7. The other evidence is in respect of the panch-witness who deposed to about the discovery of a box containing two cartridges beneath the bed of the hospital. The revolver which was found on the basis of tip given by anonymous caller was seized on 10.8.2004. The two cartridges came to be seized on the memorandum of accused from the hospital on 7.8.2004 under the memorandum at Exhibit 21. 8. It is curious that the prosecution alleges that the two cartridges had been kept by the appellant beneath the bed in the hospital of Dr. Salve. The appellant was admitted in the hospital on 5.8.2004 and the alleged discovery is on 7.8.2004 i.e. after 48 hours. It is indeed inexplicable as to how the box containing the two cartridges continued to remain beneath the bed in the hospital. The hospital obviously is required to be frequently cleaned and despite that the box continued to remain beneath the bed which was visible to everyone including the staff of the hospital. We, therefore, find that no importance much less any reliance can be placed on the said discovery of the two cartridges beneath the bed. Obviously, the two cartridges have been planted and it has been shown that they have been recovered at the behest of the appellant. Similarly, the discovery is effected in respect of the three cartridges in the office of the appellant who was a goldsmith. The said shop/office was open. The three cartridges were found in the drawer and the office was open, therefore the said cartridges could have been planted by anyone. The discovery of the said cartridges, in our opinion, has to be rejected totally. 9. What is significant is finding of the revolver. The appellant according to the prosecution was carrying the revolver with him at the time of incident and had allegedly shot deceased Avinash. The discovery of the said cartridges, in our opinion, has to be rejected totally. 9. What is significant is finding of the revolver. The appellant according to the prosecution was carrying the revolver with him at the time of incident and had allegedly shot deceased Avinash. The appellant and deceased Avinash had fallen down from the motorcycle and both of them were unconscious and were remained unconscious when they were taken to the hospital of Dr. Salve. This is deposed to by PW-2 Shrikant. It is curious that if the appellant was indeed carrying the revolver, the said revolver ought to have been noticed on the person of the appellant when he was taken to the hospital or ought to have been noticed lying near the scene of the incident. None of the persons who had gone to the scene of the incident had noticed the revolver. Similarly is the fate of the two cartridges. If the appellant was carrying the said cartridges along with him, the two cartridges which had been concealed in the box, ought to have been noticed when the appellant was taken to the hospital or in the process of being taken to the hospital. The appellant had sustained injuries and obviously must have been treated by the medical officer, yet nobody noticed the box containing the two cartridges on the person of the appellant and fortuitously the appellant regaining consciousness concealed it again very fortuitously for the prosecution beneath the bed of the hospital. The said box continued to remain there for more than 48 hours and it is therefore obvious to us that the appellant was not carrying the revolver with him. It therefore clearly excludes the participation of the appellant in inflicting the gun-shot injury to deceased Avinash. Indeed deceased Avinash had died due to gun-shot injuries, but the question remains unanswered by the prosecution as to how the appellant could have shot deceased Avinash and could have cause the disappearance of the gun. 10. The prosecution had also not led any evidence in support of the injuries sustained by the appellant. Undisputedly, the appellant had also sustained injuries, yet no efforts have been made by the prosecution to examine the Medical officer who had treated the appellant. The appellant on his discharge was arrested by the police and his clothes came to be seized. The prosecution had also not led any evidence in support of the injuries sustained by the appellant. Undisputedly, the appellant had also sustained injuries, yet no efforts have been made by the prosecution to examine the Medical officer who had treated the appellant. The appellant on his discharge was arrested by the police and his clothes came to be seized. However, since there is no evidence on record which even remotely connect the appellant with the country made revolver which was found at some distance from the scene of the incident and that too after five days of the incident, the appellant, in our opinion, would be entitled to be given the benefit of doubt. 11. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the Appellant, be refunded to him. Since the Appellant is in jail, he be released forthwith, if not required in any other case. Criminal Appeal is allowed.