Bombay High Court
Deepak Pralhad Shejwal vs The State Of Maharashtra on 24 February, 2015
Author: P.V.Hardas
Bench: P.V.Hardas
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.794 OF 2012
Deepak Pralhad Shejwal ]
Age : 37 Yrs., Occ.: Service, ]
R/of Railway Quarter, Deolali-Camp, ] .... Appellant /
Dist. Nashik ] (Org. Accused No.1)
Versus
The State of Maharashtra ] .... Respondent
Mrs. Sarojini Upadhaya (Appointed Advocate)
for the Appellant.
Mrs. S.D. Shinde, A.P.P., for the Respondent-State.
CORAM : P.V.HARDAS &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
DATE : 24TH FEBRUARY, 2015.
ORAL JUDGMENT [Per Dr. Shalini Phansalkar-Joshi, J.] :
1. The Appellant, who stands convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default to undergo R.I. for six months, by the Judgment dated 30th June, 2012 in Sessions Case No.199 of 2010, by the Additional Sessions Judge-5, Nashik, by this Appeal, challenges his conviction and sentence.
1/18 ::: Downloaded on - 27/02/2015 23:58:39 :::2. Facts, which are necessary, for deciding this Appeal can briefly be stated thus :-
On 18th June, 2010, at about 1 pm, when PW-1 Chunilal Zambre, along with his colleagues PW-4 Mhasu Shene and deceased Sham Gade, was returning from the assignment of completing the repair of Gate No.84, near Belatgavhan Gate, three unknown persons were standing by parking their motor cycles at the road side. One of them gave the blow of wooden log to PW-4 Mhasu on his back. Therefore, all the three of them fell down along with motor cycle. Then, those three persons assaulted deceased Sham with wooden logs on his head and left. As deceased Sham had sustained bleeding injury on his head, he was kept on the steps of bungalow nearby.
3. At the relevant time, Appellant came there and told PW-1 Chunilal and others to take injured Sham to the hospital. Therefore, PW-1 Chunilal and PW-4 Mhasu started searching for rickshaw. Taking that opportunity, Appellant rushed near the deceased and, blaming him for the suicide of his brother, removed the country made hand gun from his pocket and shot dead injured Sham. PW-1 Chunilal then informed on phone about the incident to his colleague PW-3 Dinesh Vispute and deceased's wife PW-
2/18 ::: Downloaded on - 27/02/2015 23:58:39 :::13 Manisha Gade. Thereafter, in the official vehicle, injured Sham was taken to Nashik Civil Hospital, where he was declared dead.
4. On the complaint (Exhibit-56) of PW-1 Chunilal, Station House Officer Chavan registered C.R. No.64 of 2010 and handed over investigation of the same to PW-17 PI Kishor Suryavanshi. He immediately went to the spot and made Spot Panchanama (Exhibit-70).
From the spot, he seized one white banyan, light blue rubber slippers, Nokia mobile battery, wooden handle of spade and the samples of simple and blood stained mud. He also seized under Panchanama Hero Honda Splendor Motor Cycle, which was lying there. On the same day, he apprehended Appellant vide Arrest Panchanama (Exhibit-85). At the time of arrest of Appellant, in his personal search, one country made hand gun and one empty cartridge were found, which came to be seized under Panchanama (Exhibit-126) in the presence of Panchas, namely, PW-10 Dheeraj Duglaj and PW-11 Pratap Walmiki. PW-17 PI Suryavanshi also seized the clothes on the person of the Appellant under Panchanama (Exhibit-128). On the same day, he recorded the statements of PW-4 Mhasu Shene and other witnesses.
5. On the next day, he recorded the supplementary statements of Informant, PW-13 Manisha, PW-6 Shantabai, wife and mother of the 3/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: deceased, respectively, and that of PW-3 Dinesh Vispute. He sent seized muddemal articles to Chemical Analyzer vide Exhibit-133 including the clothes of the deceased, which were seized vide Panchanama (Exhibit-72). Further, he sent the country made hand gun and empty cartridge recovered from the Appellant to the Ballistic Expert vide letter at Exhibit-112. As a part of further investigation, he arrested the remaining co-accused and from the co-accused Sudershan, his motor cycle No.MH-15-CJ-5134 was seized under Panchanama (Exhibit-103). On the receipt of Postmortem Report (Exhibit-78) and the X-Ray Plate from PW-8 Dr. Shankhpal, he sent the same to Ballistic Expert vide letter (Exhibit-133). Further to completion of investigation and on the receipt of Ballistic Report and C.A. Report, he filed Charge-Sheet in the Court against the Appellant and other four co-accused.
6. On the case being committed to the Sessions Court, the Trial Court framed charge against the Appellant and other co-accused vide Exhibit-46 for various offences punishable under Sections 302, 120B, 324 and 326 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 3 r/w. Section 25 and Section 7 r/w. Section 27(3) of the Arms Act. The Appellant and other co-accused denied the guilt and claimed trial.
4/18 ::: Downloaded on - 27/02/2015 23:58:39 :::7. In support of its case, Prosecution examined in all 17 witnesses and relied upon the Postmortem Notes, the reports of the Ballistic Expert and Chemical Analyzer. The Appellant raised the defence of false implication on account of the strained relations, between his family and that of the deceased.
8. The Trial Court, on appreciation of evidence on record, acquitted co-accused Nos.2 to 5 of all the charges levelled against them, whereas, convicted and sentenced the Appellant, as stated above, for the offence punishable under Section 302 of the IPC.
9. This Judgment of the Trial Court is challenged in the present Appeal by learned Counsel for the Appellant Mrs. Sarojini Upadhaya, whereas, supported by learned A.P.P. Mrs. S.D. Shinde. In our considered opinion, in order to effectively deal with the rival submissions advanced by them, it would be useful to refer to the evidence as brought on record by the Prosecution.
10. To prove the homicidal death of deceased Sham Gade, Prosecution has placed reliance on the evidence of PW-8 Dr. Shankhpal, who has conducted the postmortem on his dead body on 18th June, 2010. The dead body was received by him at Civil Hospital, 5/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: Nashik along with Inquest Panchanama (Exhibit-73) and the report of the Police. On his examination, he found, blood stains over the face, chest and both upper limbs;
wound of entry at nose and right side nostril,
centrally adm. ¼ x ¼ cm with bleeding from
nose present;
lacerated wound in the occipital region on the
left side vertical bone deep about 7 x 1 cm.;
region;
hematoma under scalp in the left occipital
fractured skull at occipital region with muscle
hematoma and bullet below periostium;
abrasion on left knee adm. 4 x 2 cms.
11. According to him, all the above injuries were antemortem.
12. On internal examination of the brain, he found that the bullet entered from the right side of the nose and reached the left occipital region causing fractured skull with evidence of pnemoencephaloceles and haemorrhage along the track injuring brain matter along the track. The track was from right side of nose to mid brain to left occipital lobe of brain to left occipital bone. He got the CT scan of the brain done as there was an entry wound of the bullet but no exit wound. The CT scan showed that the bullet was lodged below 6/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: periostium in left occipital region. On the basis of the CT scan, the bullet was located, removed and handed over to the police. On the basis of these findings, he has opined that the cause of death was "shock due to firearm injury". Accordingly, he has prepared the Postmortem Notes (Exhibit-78). In evidence before the Court, he has identified the bullet, which was removed from the brain of the dead body. Further, he has identified the packet containing the bullet, which had seal of the Hospital. He has also proved the letter (Exhibit-83) sent to the Forensic Science Laboratory including the specimens and bullet for further investigation.
13. In his cross-examination, the suggestion is put up to him that there will be burning of the surrounding skin and tattooing in case the firearm is fired from close proximity or within inches of the skin, which suggestion he has admitted to be correct. He has also admitted that no such burning of the surrounding skin or tattooing was seen by him at the time of postmortem. He has volunteered the explanation therefor by stating that, by the time the body was handed over to him, there was bleeding from the nostrills and, therefore, tattooing and burning was not seen; hence, it was not mentioned in the Postmortem Notes. Except for it, there is nothing of substance in his cross-
examination to disbelieve the cause of the death as "shock due to firearm injury".
7/18 ::: Downloaded on - 27/02/2015 23:58:39 :::14. As deposed by him, the bullet, which was located in the brain with the help of CT Scan Plate (Exhibit-77), was removed and the said bullet, along with the CT Scan Plate, were sent to Forensic Science Laboratory. The Prosecution has examined the Ballistic Expert PW-16 Gautam Ghadge, who is serving in Forensic Science Laboratory, Mumbai since 1986. He has completed the Chemical Analysis of the various seized articles sent to him, including the clothes of the deceased and Appellant, the samples of the mud seized from the spot and the country made hand gun with the empty cartridge. As per his evidence, he had received these four parcels from Deolali Camp Police Station in C.R. No.64 of 2010 through Police Naik, Bakkal No.62. The seal of the parcels was intact. They were received along with letter (Exhibit-112). In one parcel (Exhibit-1), one single barrel breach loading country made hand gun, wrapped in paper marked "A", was found. In second parcel, one KF 8 mm rifle empty having indentation on the cap, wrapped in paper, marked "B", was found. The other two parcels contained the clothes of the Appellant.
15. According to his evidence, he has found the hand gun in working order, capable of chambering and firing 8 mm. rifle cartridge. On observation, he found residue of high dimension nitrite detected in the barrel washing of the hand gun showing that the said country made 8/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: hand gun was used for firing prior to its receipt in the Laboratory. He could successfully test fire to 8 mm. rifle cartridges from Laboratory stock through the said country made hand gun. He compared the empty rifle cartridge received from Police (Exhibit-2) and found that the characteristic features of firing pin impression on the said empty cartridge (Exhibit-2) tallied with those on the cartridge, test fired from the country made hand gun, showing that empty cartridge (Exhibit-2) has been fired from the country made hand gun (Exhibit-1). On further examination of the bullet, which was recovered from the dead body, he noticed that it was a deformed soft nose copper jacketed 8 mm.
rifle bullet and it tallied with the bullet test fired from the country made hand gun, in respect of superficial length wise brushing marks, thereby clearly establishing that the said bullet has been fired from the country made hand gun (Article "A"). Accordingly, he has issued the report (Exhibit-113). He has further stated that the CT Scan Plate (Exhibit-77) was received by him along with letter (Exhibit-117). He analyzed the same and found that the tiny cylindroconical opacity in CT Scan Plate was consistent with the firing of projective bullet. The report of the said analysis is sent by him vide Exhibit-118.
16. He is cross-examined at length by learned Counsel for the Appellant, mainly to bring on record that in his report, he has not mentioned the characteristics and signs of firing. However, he has 9/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: denied suggestion that the bullet (Exhibit-2) cannot be fired from country made hand gun produced in the Court as Article "A".
17. In our considered opinion, there is no reason to disbelieve the evidence of this witness and, being an expert, his opinion carries the weight to prove that the bullet, which was found in the head of the deceased, was fired from the country made hand gun sent to him by the Police as Article "A".
18. The evidence of PW-17 PI Suryavanshi goes to prove that this country made hand gun was recovered from the possession of the Appellant at the time of his arrest. In his personal search, it was seized under Panchanama (Exhibit-126). It must be stated that the Appellant was arrested on the same day, immediately after the incident, at about 2 pm. The evidence of PW-16 Gautam Ghadge, the Ballistic Expert, proves that there were tell-tale signs of bullet being fired recently from the said hand gun.
19. Submission of learned Counsel for the Appellant is that PW-10 Dheeraj Duglaj and PW-11 Pratap Walmiki, who are the Panch Witnesses to the Seizure Panchanama of this hand gun (Exhibit-126), have not supported the Prosecution case. They are declared hostile.
Though Prosecution has cross-examined them, it was of no use.
10/18 ::: Downloaded on - 27/02/2015 23:58:39 :::Hence, according to learned Counsel for the Appellant, the recovery of the hand gun from the possession of the Appellant is not satisfactorily proved in this case.
20. It may be true that both the Panchas have not supported the Prosecution case, but then recovery is proved through the evidence of Investigating Officer PW-17 PI Suryavanshi. It is time honoured principle of law that evidence of Police Officer cannot be discarded merely because he is a Police person. It is also well settled that Court need not seek corroboration to the evidence of Police Officer, who conducted the search because the presumption that "people act honestly" applies equally to the Police Officers also. Hence, it cannot be proper judicial approach to distrust and suspect the Police Officers, without good grounds brought on record to challenge his credibility. In this respect, useful reference can be made to the observations of the Supreme Court in the case of Madon Singh Vs. State of Rajasthan, AIR 1978 SC 1511, wherein the Supreme Court held that "if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the Prosecution case".
21. In the present case also, nothing is brought on record to challenge the credibility of the Investigating Officer PW-17 PI 11/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: Suryavanshi, who has deposed about the recovery of this country made hand gun and one empty cartridge from the possession of the Appellant at the time of his arrest, immediately after the incident.
Once this recovery is proved, on the basis of evidence of Postmortem Notes (Exhibit-78) and report of Ballistic Expert (Exhibit-113), then the necessary connecting link in the death of the deceased and the complicity of the Appellant is required to be held as established.
22. In addition thereto, there is also the evidence of an eye witness on record, namely, PW-7 Machchindra Gaikwad. He has deposed that on that day, he had gone to meet his daughter. At about 1:15 pm to 1:30 pm by Lam Road at Belatgavhan Phata, he saw the crowd gathered. Hence, he stopped to see what had happened. He saw 2 - 3 persons running away after assaulting the deceased with wooden sticks on his head. He noticed that deceased Sham, who was incidentally his nephew, has sustained injury to his head and the assailants had ran away on motor cycle. He picked up injured Sham and made him sit on a platform in front of a nearby bungalow. He then crossed the road to look for rickshaw. Just then the Appellant came there on a motor cycle, put the country made hand gun to the head of Sham and fired at him. Appellant then fled on his motor cycle. Some persons, who were there with Sham, then telephoned their office and called for a vehicle. Sham was put in the vehicle and then taken to the 12/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: hospital. In his evidence before the Court, he has identified the Appellant, who is resident of the same village, and also the country made hand gun (Article "A").
23. In his cross-examination, it is brought on record that his statement came to be recorded on the next day. In our opinion, it is but natural, as, on that day, he remained occupied with the funeral and other formalities. It is further brought on record that when he took the injured Sham to the hospital and he was declared dead, initially, the Doctor was not able to locate the bullet in the body. They took the body to another Ward in front of the computer and saw the location of the bullet and then it was removed from the head. He has further deposed that there was no hole on the back side of the head and the injury on the head was due to assault by wooden sticks.
24. In his further cross-examination, it is also brought on record that there was crowd of about 15 - 20 persons. The motor cycle was lying on the spot. He has further corrected himself by stating that he has not picked up Sham, but other persons did so and, therefore, his clothes or hands did not get stained with the blood. Except for the same, his evidence has remained cogent, forthright and convincing to prove the occurrence of the incident about the Appellant firing shot at deceased Sham.
13/18 ::: Downloaded on - 27/02/2015 23:58:39 :::25. Further corroboration is coming to his evidence from the testimony of PW-1 Chunilal, the Informant,. He was working as Signal Maintainer in Indian Railways since last 20 years, along with his colleagues, namely, deceased Sham, PW-4 Mhasu and others. On the date of incident, at 6 am itself, he received the call from PW-2 Sudhir Kokande to repair Gate No.84 at Lahvit. Hence, along with the deceased, he went on motor cycle to the said Gate No.84. On the way, Appellant made enquiry with him whether they had reached the spot.
At the spot, he found that the pin of the gate was not working and, therefore, he called PW-4 Mhasu to bring pin along with him. After some time, when PW-4 Mhasu came, they repaired the gate. Appellant also came there. Then, after the work was over, at about 1 pm, the three of them sat on the motor cycle and were returning. The Appellant went on his own motor cycle towards Deolali Station, whereas, they proceeded towards Nashik Road. However, on the way, near Belatgavhan Gate, at about 1 pm, three unknown persons were standing by the road side near motor cycle. One of them gave a blow to PW-4 Mhasu with wooden log. As a result, all the three of them fell down from the motor cycle. Those persons gave 3 - 4 blows to the deceased on his head and then ran away on the said motor cycle, due to which deceased sustained bleeding injury on his head. Hence, the persons gathered there made him sit on a platform of a nearby house.
14/18 ::: Downloaded on - 27/02/2015 23:58:39 :::After about ten minutes, Appellant returned there and told him to take the deceased to the hospital. Therefore, he started making enquiry about the official vehicle on the phone. As per his evidence, at that time, he heard the sound of explosion like a fire cracker and he saw deceased bleeding from his nose.
26. It is true that this witness has not completely supported the Prosecution case and, therefore, he is cross-examined by the learned A.P.P. in reference to the content in his complaint (Exhibit-56) that he has seen Appellant firing shot at the deceased. He has denied those contents in the complaint. However, in his further cross-examination by the learned A.P.P., sufficient material is brought on record to show that he has heard the sound of explosion like fire crackers before Appellant left the spot of incident. Further, he has admitted that he saw the injury on the deceased's head immediately after he had heard the sound of explosion like fire crackers. It is also brought on record that the Appellant had come to the spot on the motor cycle bearing No.MH-15-CJ-4610 of Hero Honda Passion make. He has further admitted that he has informed about this incident on his mobile to PW-
2 Sudhir Kokande and as he was speaking in low voice, being scared, PW-2 Sudhir Kokande handed over the mobile to PW-3 Dinesh Vispute and then he narrated the incident to PW-3 Dinesh Vispute. Further, he has admitted that he has narrated on phone the incident of Appellant 15/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: having fired at Sham and killing him. Thus, this witness has given critical admissions in favour of the Prosecution, even after he is declared hostile and cross-examined by A.P.P. These admissions go to support and prove the Prosecution case that he has witnessed the Appellant firing shot at the deceased.
27. There is also corroborating evidence of PW-2 Sudhir Kokande, who has received the mobile phone call of PW-1 Chunilal. As PW-1 Chunilal talked with him in a very frightened condition, he could not understand what PW-1 Chunilal was saying. Therefore, he handed over mobile to PW-3 Dinesh Vispute and then all of them went to the spot.
PW-3 Dinesh Vispute has also supported the fact that they came to know about the incident of assault from PW-1 Chunilal. Though it is true that both these witnesses have not supported the Prosecution case that on phone PW-1 Chunilal informed them that Appellant has shot fired to the deceased, in their cross-examination by the learned A.P.P., they were confronted with the relevant portions in their statements and, to that extent, they stand discredited, as the said portions are proved through the evidence of PW-17 PI Suryavanshi.
28. Prosecution has also examined PW-4 Mhasu, who was with PW-1 Chunilal and deceased Sham. He has deposed everything as to how the actual incident happened, except for the fact that he has seen the 16/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: Appellant firing shot at deceased. However, in cross-examination by the learned A.P.P., he has also admitted that he heard the sound like fire cracker, when he had gone to look for vehicle, hence, when he turned to see what had happened, he saw the Appellant rushing on his motor cycle.
29. Thus, the presence of the Appellant at the spot, along with his motor cycle, is not only sufficiently proved, but from the evidence of these witness, it is also proved that immediately after they heard the sound of fire cracker and deceased sustaining the injuries to his head, they found the Appellant fleeing away from the spot on his motor cycle. From these proved facts, necessary inference can definitely be drawn about the complicity of the Appellant. Appellant has not explained his conduct of leaving from the spot in a haste, as good as fleeing away, instead of helping the witnesses to find some vehicle to take injured Sham to the hospital. This constitutes one more connecting link.
30. Prosecution has then led the evidence of PW-6 Shantabai, the mother of the deceased, and PW-13 Manisha, the wife of the deceased, to prove that there was dispute between Appellant and deceased relating to the purchase of house at Aringale Mala. The Civil Suits were filed in respect of the said dispute. Just on 16 th June, 2010, 17/18 ::: Downloaded on - 27/02/2015 23:58:39 ::: two days before the date of incident, one order was passed in favour of the deceased in the said Suit, which appeared to be the immediate cause for the incident.
31. To sum up, therefore, in this case, the Prosecution has brought on record, along with the evidence of the eye witness PW-7 Machchindra Gaikwad, the chain of incriminating circumstances, which is so complete, that from the said chain of circumstances, no other inference, except that of the guilt of the Appellant, can be drawn. In our opinion, therefore, the Trial Court has rightly held the guilt of the Appellant to be proved beyond reasonable doubt for the offence punishable under Section 302 of the IPC.
32. The Criminal Appeal No.794 of 2012, therefore, holds no merit and, hence, stands dismissed, confirming the conviction and sentence of the Appellant for the offence punishable under Section 302 of the IPC.
33. The fees of the Advocate appointed for the Appellant from the Legal Aid Panel are quantified at Rs.5,000/-.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [P.V.HARDAS, J.] 18/18 ::: Downloaded on - 27/02/2015 23:58:39 :::