Bombay High Court
Sarju S/O Zuru Zore (In Jail) vs State Of Maharashtra, Through P.S.O. ... on 29 March, 2016
Author: B.R. Gavai
Bench: B.R. Gavai, Swapna Joshi
APEAL.492.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 492 OF 2013
Sarju s/o Zuru Zore,
Aged about 35 years, Occ. Farmer,
R/o Rekhabhatal, Tq. Ettapalli,
District Gadchiroli.
(Presently detained in Central Prison,
at Nagpur).
ig .... APPELLANT.
// VERSUS //
The State of Maharashtra,
through its Police Station
Officer, Police Station
Bhamragad, District Gadchiroli. .... RESPONDENT.
Mr. S.P. Gadling, Advocate for appellant,
Mr. V.A. Thakare, Additional Public Prosecutor for respondent.
CORAM : B.R. GAVAI & MRS. SWAPNA JOSHI, JJ.
DATED : MARCH 29, 2016.
ORAL JUDGMENT (PER B.R. GAVAI, J.)
1] Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Gadchiroli dated 29.7.2013 in Sessions Case No. 18/11, thereby convicting the appellant for the offence punishable under Section 302 read with Section 149 of the ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 2 Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- and in default, to suffer further S.I. for one month, and also convicting the appellant for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- and in default, to suffer further S.I. for one month, and convicting the appellant for the offence punishable under Sections 353 read with Section 149 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default, to suffer further S.I. for one month and convicting the appellant for the offence punishable under Section 143 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default, to undergo further S.I. for 15 days, the appellant has approached this Court.
2] The prosecution case, in brief, as could be gathered from the material placed on record is as under :-
PW.1 Balasaheb Hanumant Deshmukh, who at the relevant time was working as Sub-Inspector of Police and was attached to A.O.P. Kothi, had received an information on 20.2.2008 ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 3 that around 70 to 80 naxalites are holding camp at Dobudharan area.
He had given information to superiors and called for special force from Gadchiroli headquarters as well as Pranhita headquarter. After the entire force had assembled, he had briefed them on 21.2.2008 regarding the action plan on 22.2.2008. At around 3.30 a.m. he along with his two party commanders and 42 police personnel started towards Doburdharan area. They reached near Dobur village at around 5 to 5.30 a.m. When they entered the area of Dharan, he saw a plain land. It was covered on three sides with mountains and hilly parts. PW.1 Deshmukh divided the parties in three parts, each headed by himself, Narayan Wadde and Rama Kudey respectively.
The naxalites who had assembled there were accosted from three directions. Narayan Wadde asked the naxalites to surrender;
however, they did not surrender and started firing. The police party also started firing in reply to the firing by the naxalites. PW.1 Deshmukh also asked to surrender. However, they did not surrender and started firing towards him and his party. They were abusing him. The firing continued for a considerable period. In the firing, one constable Shrinivas Dandikwar received bullet injuries in his body. After exchange of fire continued for sometime, the naxalites ran away. The police party found dead bodies of four ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 4 naxals. Injured Shrinivas was brought to Bhamragad. In the Bhamragad hospital, Police Constable Shrinivas was declared dead.
PW.1 Deshmukh and other members of the party also seized various weapons from the spot. After coming back to Bhamragad, oral report came to be lodged by PW.1 Deshmukh below Exh. 21. Spot panchnama was also executed below Exh. 20. The printed FIR came to be lodged below Exh. 22. It appears that subsequently, the present appellant came to be arrested on 8.7.2010.
3] Initially, charge-sheet was filed against six accused persons. Four persons were shown as dead accused. One other person was also named in the charge-sheet as having died in some other crime. Therefore, though the names of five accused persons were shown in the charge-sheet, they were not charge-sheeted since dead.
4] The present appellant came to be arrested subsequent to the filing of the charge-sheet. Since the other five accused could not be arrested, the trial was conducted only against the present appellant. Supplementary charge-sheet was also filed in the Court of learned J.M.F.C., Aheri. Since the case was exclusively triable by ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 5 the Court of Sessions, the same came to be committed to the Court of learned Sessions Judge, Gadchiroli. The learned trial Judge framed the charges below Exh. 3 against the accused. The accused pleaded "not guilty" and claimed to be tried.
5] The evidence of PW.1 Balasaheb Deshmukh and PW.2 Rama Kudyami was recorded by the learned Sessions Judge on
2.4.2013 and 15.4.2013. The evidence of two other witnesses, namely, PW.3 Pramod who was working as Police Inspector at Bhamragad Police Station during 2008 to 2009 and PW.4 Somnath Malkar who was working as P.S.O. at the said Police Station from 21.1.2008 to 6.8.2008, was also recorded. At the conclusion of the trial, the learned trial Judge acquitted the accused for the offence punishable under Sections 3/25, 5/27 of Indian Arms Act and Section 135 of Bombay Police Act and under Section 120B of the Indian Penal Code. The learned trial Judge, however, recorded the order of conviction and sentence against the present appellant, as aforesaid. Being aggrieved by the order of conviction and sentence, the present appeal has been filed by the appellant.
6] We have heard Shri S.P. Gadling, the learned Counsel for ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 6 the appellant and Shri V.A. Thakare, the learned Additional Public Prosecutor for the respondent/State.
7] Shri S.P. Gadling, the learned Counsel for the appellant, submits that the order of conviction is based only on the evidence of two witnesses, i.e. PW.1 Balasaheb Deshmukh and PW.2 Rama Kudyami. He submits that both of them are eye-witnesses. He further submits that the identification of the accused after a period of five years for the first time in the dock itself creates a doubt regarding the veracity of their evidence. The learned Counsel, therefore, submits that the appeal deserves to be allowed and the order of conviction set aside.
8] Shri V.A. Thakare, the learned Additional Public Prosecutor for the respondent/State, on the contrary, submits that the name of the present appellant is found in the FIR itself. He submits that since the exchange of fire had taken place within a visible range and since the witnesses had heard the name of the appellant as Sarju to be the one in the naxalites party, no fault can be found with identification of the appellant for the first time by these witnesses in the dock. He, therefore, submits that the appeal is without merit and ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 7 as such, liable to be dismissed.
9] The factum regarding the death of the deceased being homicidal is not seriously disputed before us and as such, it will not be necessary for us to go into the evidence in that regard.
10] The prosecution mainly relies on the evidence of PW.1 Balasaheb Deshmukh, the first informant who was at the relevant time in-charge of the raiding party and PW.2 Rama Kudyami, who was commander of the three groups formed by PW.1 Deshmukh. In so far as the evidence of PW.1 Balasaheb Deshmukh is concerned, he states that when the members of the naxalite group were abusing and instructions were being given to the co-naxalites, he had heard the name of Bhaskar. Sarju, Girdhar, Ramko, Tarakka, Narmada and others. He has also stated in his evidence that he had seen the present appellant firing from a short distance. He has identified the accused in the Court on 2.4.2013, i.e. after a period of five years from the date of the incident.
11] From the evidence of this witness as well as the evidence of PW.2 Rama, it would be clear that there was a heavy exchange of ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 8 fire between the police party and naxalite party. It is difficult to digest that when heavy firing was taking place between the naxalites and the police personnel, the witnesses could have heard the names of the persons to whom instructions were given. No doubt that the identification of the accused in the dock for the first time would itself not vitiate the evidence of such witness. However, while appreciating the evidence, all surrounding circumstances are required to be taken into consideration. As already discussed hereinabove, not only there was an exchange of fire from rifles and S.L.Rs., but as per these witnesses even hand grenades were thrown at each other. In such an atmosphere, it will be difficult to believe that a person who himself was involved in heavy firing could have heard the names.
12] The evidence of PW.2 Rama is also on similar lines.
However, in his cross-examination, he has admitted that the area where the firing was taking place, there was a thick forest. He has further admitted that the naxalites were taking the support of the trees and stones. It could thus be seen that the possibility of these witnesses really seeing the present appellant firing is very remote. In any case, even though the accused was arrested in July, 2010, no identification parade was held. It is only in the month of April, 2013 ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 9 that these two witnesses have identified the present appellant to be the same person who was firing at the police party.
13] The prosecution has also not examined the person who has arrested the present appellant. It could thus be seen that the prosecution has also not brought on record as to how they had zeroed on the present appellant and connected him with the crime in question. Due to the lack of the evidence connecting the present appellant with the crime in question and particularly when neither of the witnesses knew the present appellant prior to the incident, nor had any occasion to see him prior to the incident, his identification for the first time in the dock cannot be said to be beyond a shadow of suspicion.
14] We, therefore, find that the prosecution has failed to prove the case beyond reasonable doubt. The appellant/accused is entitled to the benefit of doubt.
15] The Criminal Appeal is, therefore, allowed.
The impugned judgment and order of conviction and sentence against the appellant/accused are quashed and set aside ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 ::: APEAL.492.13 10 and the appellant/accused is acquitted of the offences. The fine amount, if paid, be refunded to the appellant.
The appellant is ordered to be released and set at liberty forthwith if not required in any other case.
JUDGE JUDGE .
J. ::: Uploaded on - 02/04/2016 ::: Downloaded on - 31/07/2016 10:54:13 :::