Bombay High Court
Ranjitsingh Gulabsingh Chungade vs State Of Maharashtra Thr. P.S. Officer, ... on 14 June, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal369.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.369 OF 2017
Ranjitsingh Gulabsingh Chungade,
Aged about 60 years,
R/o Rajput Pura, Akola, Tq. and
District Akola. .... APPELLANT
VERSUS
State of Maharashtra,
through PS Officer, P.S. Ramdaspeth,
Akola, District Akola. .... RESPONDENT
______________________________________________________________
Shri Anil Mardikar, Senior Counsel assisted by Shri S.G. Joshi, Counsel
for the appellant,
Shri C.A. Lokhande, Addl.P.P. for the respondent-State.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 14th JUNE, 2019
ORAL JUDGMENT :
The appellant is assailing the judgment of conviction dated 30-6-2017 rendered by the Additional Sessions Judge, Akola in Sessions Trial 234/2002.
2. The appellant, who shall be hereinafter referred to as the accused, and one Bajrang faced trial for offences punishable under ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 2 apeal369.17 Sections 353, 294, 506 and 307 read with Section 34 of the Indian Penal Code and Section 25 read with 4 of the Arms Act.
3. The co-accused Bajrang is convicted for offence punishable under Section 353 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs. 500/-. Bajrang is further convicted for offence punishable under Section 506 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs. 500/- and is further convicted for offence punishable under Section 294 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three months and to payment of fine of Rs.500/-. It is stated at the bar that the accused Bajrang has not preferred an appeal presumably as he served the sentence as under trial.
4. The accused Ranjitsingh is convicted and sentenced as follows :
Offence Sentence Sections 353 of the Indian Penal Rigorous imprisonment for two Code. years and to payment of fine of Rs.
1,000/-.
Section 506 of the Indian Penal Rigorous imprisonment for five Code. years and to payment of fine of Rs.
1,000/-.
Section 294 of the Indian Penal Rigorous imprisonment for three ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 3 apeal369.17 Code. months and to payment of fine of Rs.500/-.
Section 307 of the Indian Penal Rigorous imprisonment for eight Code. years and to payment of fine of Rs.
1,000/-.
Section 25 r/w Section 3 of the Rigorous imprisonment for three Arms Act. years and to payment of fine of Rs.
1,000/-.
The prosecution version can be considered in two parts. The first part is quite mundane. PW 2-Vasegiri Narayan was serving as Assistant Superintendent of Police (Akola City) in 1993. The incident occurred on 29-8-1993. PW 2-Vasegiri, alongwith driver Ashok, Police Constable Devidas, Ramesh and Ravindra were patrolling the sensitive areas of the town in view of the forthcoming procession of the Eid-e-Miladunnabi, in police vehicle bearing registration MUL-4481. PW 2 and his squad reached hotel Ashish at 11-15 p.m. Since the hotel was catering to customers beyond 11-00 p.m., PW 2 stopped the vehicle and instructed Police Constable Ramesh to summon the owner of the hotel. The owner of the hotel Baba Bharati was asked to accompany Police Constable Devidas, Ramesh and Ravindra and to impress upon the customers to leave the hotel. Few customers left the hotel. However, two customers refused to leave, they stood there and threatened the police squad by uttering the words "Are we criminals? We are INTUC leaders. We do not care for the police and have come ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 4 apeal369.17 across many such policemen and have set them right) (This is broad translation of the vernacular). The customers further threw glasses in the direction of the police constables. Ramesh-the Police Constable, who was asked to accompany the owner of the hotel, informed PW 2 that the two persons in the hotel were issuing threats. PW 2 then took charge of the situation, entered the hotel and made the two persons, who disclosed their names as Ranjitsingh Gulabrao Chungade and Bajrangsingh Sardarsingh Rajput, to sit in the jeep.
5. The second part of the prosecution version is intriguing. PW 2 occupied the front seat besides the driver's seat. The accused was made to sit in the rear seat immediately behind PW 2. One Police Constable sat besides the accused. The jeep turned from the Caltex Petrol Pump and the prosecution version is that the Police Constable Ramesh shouted "Sir, Sir" which impelled PW 2 to turn back to see why the Police Constable uttered the words and that too in frightened voice. PW 2 heard sound of bullet fire and the bullet passed close to his right ear and struck the windscreen of the police jeep. Driver Ashok immediately stopped the vehicle and the lights were switched on. Accused Ranjitsingh was holding a country made hand Gun (Deshi Katta) in his right hand which was immediately snatched by the Police Constable. Personal search of Ranjitsingh and Bajrangsingh was taken. ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
5 apeal369.17 Ranjitsingh was found in possession of a country made gun with a .22 live cartridge in the left barrel and an empty .22 cartridge in the right barrel. One polythene bag was recovered and seized from the right trouser pocket of the accused Ranjitsingh which contained 5 live .22 cartridge and one empty .22 cartridge. One rampuri knife was recovered from Bajrangsingh. PW 2 lodged report against Ranjitsingh and Bajrangsingh at Police Station Ramdaspeth, Akola on the basis of which Crime 325/1993 for offence punishable under Sections 353, 294, 506 and 307 read with Section 34 of the Indian Penal Code and for offence punishable under Section 4 read with Section 25 and Section 3 read with Section 25 of the Arms Act was registered.
6. Investigation ensued which culminated in charge-sheet which was submitted in the Court of Judicial Magistrate First Class, Akola for offence punishable under Sections 353, 294, 506 and 307 read with Section 34 of the Indian Penal Code and Sections 4 read with Section 25 and Section 3 read with Section 25 of the Arms Act. The learned Magistrate committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge for offence punishable under Sections 353, 294, 506 and 307 read with Section 34 of the Indian Penal Code and Section 4 read with Section 25 and Section 3 read with Section 25 of the Arms Act. The accused abjured ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 6 apeal369.17 guilt and claimed to be tried in accordance with law. The text and tenor of the cross-examination and the statements recorded under Section 313 of the Criminal Procedure Code would suggest that the defence is of total denial and false implication.
7. The learned Sessions Judge has convicted the accused Ranjitsingh and co-accused Bajrangsingh relying substantially, if not entirely, on the evidence of PW 2-Vasegiri Narayan who is the informant and PW 4-Police Constable Ramesh.
8. The prosecution made no effort to adduce corroborative scientific and forensic evidence. This aspect shall be considered in some detail at a later stage in the judgment. The only independent witness who is examined, to support the first part of the prosecution case is PW 1-Wasudeo Patil. However, the evidence of PW 1-Wasudeo Patil does not take part 2 of the prosecution version any further. Au contraire, if the evidence of PW 1 is accepted, the entire prosecution case crumbles, which aspect too shall be considered at a later stage.
9. Shri Anil Mardikar, learned Senior Counsel would submit that the prosecution story is inherently incredible. A lousy shot, the accused may as well be, however, missing the target from a distance of ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 7 apeal369.17 one foot or thereabout is a sheer impossibility, is the submission of the learned Senior Counsel. Shri Anil Mardikar, learned Senior Counsel would take me through the evidence of PW 1-Wasudeo Patil, who, after supporting the prosecution in the examination-in-chief, has completely demolished the prosecution case by deposing that when the accused and Bajrangsingh were brought out from the hotel, they were searched, articles seized and the accused handcuffed. Shri Anil Mardikar, learned Senior Counsel would submit that PW 1-Wasudeo Patil was not declared hostile. The evidence of PW 1, therefore, binds the prosecution, is the submission. Shri Anil Mardikar, learned Senior Counsel would then submit that the incident of the alleged close range gun fire in the moving vehicle is a figment of the imagination of the prosecution witnesses. The accused were brutally assaulted, accused suffered injuries and the false implication of the accused in the crime was to escape the consequences of the police brutality, is the submission. Shri Anil Mardikar, learned Senior Counsel would submit that if a bullet were to be fired in the confined space of a vehicle from close range, such firing would leave more than ample forensic evidence, which the prosecution could have adduced, and failed to adduce. The examination of the hand gun seized is inconclusive. The glass of the windscreen which allegedly shattered due to the impact of the bullet is not subjected to any forensic test nor is the interior of the vehicle examined to collect ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 8 apeal369.17 and send for forensic analysis the traces or residue of the gun powder which would inevitably be found on the person of PW 2 and the interior of the jeep, considering that the prosecution version is that the accused fired at PW 2 from extremely close range. Shri Anil Mardikar, learned Senior Counsel would further submit that no attempt was made to collect and analyze the chance prints on the hand gun allegedly used in the commission of the offence. Shri Anil Mardikar, learned Senior Counsel while launching a frontal assault on the integrity of the investigation, asserts that the accused was "framed" and "fixed". Shri Anil Mardikar, learned Senior Counsel would submit that while some altercation may have ensued between the accused and the police squad at Ashish hotel, the injuries suffered by the accused are irrefutable, and what is more likely than not, is that the accused was brutally assaulted and then framed and falsely implicated. The sentiment which resonates in the submission of Shri Anil Mardikar, learned Senior Counsel is "hell hath no fury than an enraged police officer".
In rebuttal, the learned Additional Public Prosecutor Shri C.A. Lokhande would support the judgment of the trial Court. A strenuous attempt is made to persuade me to hold that the prosecution has proved the offence beyond reasonable doubt and that the trial Court committed no error in basing the conviction on the ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 9 apeal369.17 evidence of the police officers.
10. The prosecution story, as noted supra, is in two parts. PW 1 - Vasudeo Patil was examined to lend credibility to the first part of the prosecution story. To this extent, the witness did not fail the prosecution and deposed that the accused abused the hotel staff and ignored the request of the owner of the hotel to have dinner early. PW 1 - Vasudeo Patil states that PW 2 - Vasegiri Narayan and his staff directed him to shut down the hotel. The witness further states that before the accused was apprehended by PW 2 - Vasegiri Narayan, he threw a glass towards one police man. However, in the brief cross- examination, PW 1 did serious disservice to the prosecution case by deposing thus:
"The persons with the accused ran away. The Police Officer Laxmi Narayan and others have brought the accused from the cabin of hotel and took them in custody in front of the counter. The police have taken complete personal search of both accused. The police have taken out tobacco pouch, cigarette case and some amount from the person of the accused. Except this nothing was found on the person of accused. At that time police have hand-cuffed both hands of both accused. The rope of the hand-cuff were in the hand of policemen. The accused threw a glass towards policeman from cabin. At that time, I was at counter. The accused threw a glass, therefore, I felt that he threw it towards police.
If the evidence of PW 1 Vasudeo Patil is accepted, the case of the ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 10 apeal369.17 prosecution that the accused was possessing weapon and cartridge and that while travelling in the police vehicle he whipped out the handgun and took a shot at PW 2 - Vasegiri Narayan, is totally demolished.
11. The learned senior counsel Shri Anil Mardikar would submit, relying inter alia on the decision of the Hon'ble Supreme Court in Raja Ram vs. State of Rajasthan (2005)5 SCC 272, that since PW 1 was not declared hostile, his testimony would bind the prosecution.
The learned senior counsel is right in the submission that even after the cross-examination, the prosecutor could have sought permission from the Court to put to the witness questions under section 154 of the Evidence Act. The discretion of the Court to permit the party calling a witness to put questions in the nature of cross-examination is not fettered by the stage. A disturbing feature which I have noticed, is the tutoring of the prosecution witness by the defence and the prosecution witness confirming to his version in the 161 statement in the examination in chief and then in the cross examination obliging the defence by statements which either dilute or nullify the effect of the examination in chief or which bring on record additional and different facts which would assist the defence. Lamentably, the ability of the defence to subvert and pollute the purity of the stream of justice is given the gloss of courtcraft. It is in the context of such a situation that ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 11 apeal369.17 the Hon'ble Supreme Court articulates thus in Dahyabhai Chhaganbhai Thakkar vs. State of Gujrat, AIR 1964 SC 1563:
"(8) Now we come to the merits of the case. Ordinarily this Court in exercise of its Jurisdiction under Art. 136 of the Constitution accepts the findings of fact arrived at by the High Court. But, after having gone through the judgments of the learned Additional Sessions Judge and the High Court, we are satisfied that this is an exceptional case to depart from the said practice. The learned Additional Sessions Judge rejected the evidence of the prosecution witnesses on the ground that their version was a subsequent development designed to help the accused. The learned Judges of the High Court accepted their evidence for two different reasons. Raju, J., held that a court can permit a party calling a witness to put questions under s.
154 of the Evidence Act only in the examination-in chief of the witness; for this conclusion, he has given the following two reasons: (1) the wording of Ss. 137 and 154 of the Evidence Act indicates it, and (2) if he is permitted to put questions in the nature of cross-examination at the stage of re- examination by the adverse party, the adverse party will have no chance of cross-examining the witness with reference to the answers given to the said questions. Neither of the two reasons, in our view, is tenable. Section 137 of the Evidence Act gives only the three stages, in the examination of a witness, namely, examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S. 154 of the Evidence Act: that is governed by the provisions of S. 154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination in- ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
12 apeal369.17 chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross- examination (sic-re-examination) permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of S. 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross- examine him on the answers elicited which do not find place in the examination-in- chief. In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination- in-chief, but in the cross- examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution, permitted him to cross- examine the said witnesses. It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross-examine the witnesses and was denied of it by the court. The procedure followed by the learned Judge does not conflict with the express provisions of S 154 of the Evidence Act. Mehta, J., accepted the evidence of the witnesses on the ground that the earlier statements made by them before the police did not contradict their evidence in the court, as the non-mention of the mental state of the accused in the earlier statements was only an omission. This reason given by the learned Judge is also not sound. This Court in Tahsildar Singh v. The State of U.P. (1959) Supp (2) SCR 875 at p.903:(AIR 1959) SC 1012 at p. ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
13 apeal369.17 1026) laid down the following test for ascertaining under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court:
"............... (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement .......... ; (ii) a negative aspect of a positive recital in a statement....; and(iii) when the statement before the police and that before the Court cannot stand together.... ".
Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and, therefore, he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. The judgment of the High Court, therefore, in relying upon some of the important prosecution witnesses was vitiated by the said errors of law. We would, therefore, proceed to consider the entire evidence for ourselves".
The learned prosecutor was clearly not alive to the position of law nor was vigilant nor was conscious of his duty and responsibility towards the justice dispensation system. The learned prosecutor, inexplicably, did not seek the permission of the Court under section 154 of the Indian Evidence Act to put questions to PW 1 - Vasudeo Patil in the nature of cross examination. The rule that if the prosecution ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 14 apeal369.17 witness is not declared hostile, his testimony binds the prosecution is not absolute or inflexible. Ordinarily, the prosecution must be held bound by the testimony of its witness who is not declared hostile. However, if the Court is satisfied that the witness is won over and the endeavour is to vitiate the sanctity of the oath, the Court shall be loathe to remain a mute spectator. The duty of the judge to ascertain the truth cannot be hostage to the incompetence or the negligence of the public prosecutor.
The elicitation in the cross-examination of PW 1 - Vasudeo Patil of statements which ostensibly eviscerate the prosecution case does not impress me. I am satisfied, that PW 1 is a compromised witness.
12. The edifice of the prosecution case is constructed on the evidence of PW 2 - Vasegiri Narayan and PW 4 - PHC Ramesh Jawanjal. I may briefly touch the evidence of the other witnesses if only to fortify my view that the only material witnesses from the prosecution perspective are PW 2 Vasegiri Narayan and PW 4 - Ramesh Jawanjal. The evidence of PW 1 - Vasudeo Patil is already considered supra. PW 3 - Bandu Ramekar who is examined as panch to the spot panchanama did not support the prosecution. PW 5 - Raju Kanojiya, who too was examined as panch to the spot panchanama did not support the prosecution. PW 6 - Runesh Moyal who is examined as panch to the ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 15 apeal369.17 seizure panchanama did not support the prosecution. PW 7 - Suresh Deshmukh who is examined to bring on record the threats issued by the accused did not support the prosecution. PW 8 - ASI Vinod Hiwrale was deputed to deposit the seized property with the Forensic Science Laboratory, Mumbai, PW 9 is the Investigating Officer whose testimony takes the case of the prosecution no further and would be adverted to at a later stage in the judgment. PW 10 - Sudhirkumar Shrivastav is the then District Magistrate who was examined to prove the sanction under the Arms Act. PW 11 - Sudhakar Ramteke and PW - 12 Rahul Pawar are the then Assistant Director and Deputy Director - Forensic Science (S) Laboratory, Mumbai.
13. The evidence of PW 2 - Vasegiri Narayan and PW 4 - Ramesh Jawanjal is broadly consistent. PW 2 - Vasegiri Narayan and PW 4 - Ramesh Jawanjal are in unison in deposing that since PW 4 - Ramesh Jawanjal shouted in frightened voice "Sir, Sir", PW 2 - Vasegiri Narayan looked back and the bullet which was fired missed PW 2 - Vasegiri Narayan by a whisker. PW 2 - Vasegiri Narayan states that necessary force was used to disarm the accused. The two witnesses do speak of seizure of handgun, empty cartridges and other articles. However, it is not in dispute that the seizure panchanama recorded in the Police Station by summoning witnesses was a post facto ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 16 apeal369.17 panchanama of the alleged seizure effected when the vehicle was stopped and the accused disarmed. The seizure panchanama was recorded as a ritualistic formality and is of no significance in law. PW 2
- Vasegiri Narayan is subjected to extensive cross-examination to buttress the defence of false implication. Several suggestions are given to PW 2 Vasegiri Narayan to the effect that the accused was falsely implicated in Crime 176 of 1993 which crime is registered in connection with an incident which occurred on 30.8.1993. PW 2 - Vasegiri Narayan admits that on 30.8.1993 the accused was in the custody of Ramdaspeth Police Station. PW 2 - Vasegiri Narayan, however, gives evasive answers to the probing questions put in the cross-examination. Illustratively, PW 2 - Vasegiri Narayan states that he did not remember whether accused 1 was implicated in crime 176 of 1993. The answer to several questions is "most probably" and "may be"
or "I do not know" or "might be".
PW 2 - Vasegiri Narayan admits to have used "reasonable force"
to disarm the accused. In the context of the deposition of PW 2 that reasonable force was used to disarm the accused, the report of the medical examination may now be analyzed. Exhibit 185 is the report of the medical examination of the accused conducted at 11:20 a.m. on 30.08.1993 at the Akola General Hospital. Seven contusions with abrasions are noted on the left upper arm and two contusions are noted ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
17 apeal369.17 on the leg. Notably, there is no injury to the right hand of the accused from which the handgun was allegedly snatched. PW 4 - Ramesh Jawanjal has not testified that force was used to disarm the accused. In the cross-examination, PW 4 - Ramesh asserts that the handgun was snatched from the right hand of the accused. PW 4 - Ramesh Jawanjal is not only silent on the use of force to disarm the accused, he further claims ignorance of the accused having any injury marks. In the teeth of the testimony of PW 4 - Ramesh, the version of PW 2 - Vasegiri Narayan that reasonable force was used to disarm the accused is rendered extremely doubtful. No other explanation is offered by the prosecution to explain the injuries suffered by the accused, which only lends credence to the defence theory that the accused was assaulted and not with the limited objective of disarming the accused.
14. PW 4 -Ramesh admits to have stated in the 161 statement that he saw the handgun in the hand of the accused after vehicle was stopped and the light switched on. In the substantive evidence, the version of PW 4 - Ramesh is that since the street light were on, the handgun was seen prior to the switching on of the lights of the vehicle. PW 4 admits that police constable Devidas Kandarkar was seated besides the accused and that he was seated at a distance of 2 feet from the accused. Devidas Kandarkar is not examined. In the context of the ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 18 apeal369.17 testimony of PW 4 - Ramesh that he saw the handgun in the light emanating from the street light, the absence of reasonable explanation to account for the failure or inability of police constable Devidas Kandarkar and PW 4 - Ramesh to immediately intervene and prevent the alleged firing, assumes significance.
Reverting to the evidence of PW 2 - Vasegiri Narayan, his version that after gun fire, the vehicle was stopped and the accused was seen holding the handgun, is at variance with the version of PW 4. I have noted supra, that PW 2 - Vasegiri Narayan was extremely evasive in answering the questions of the defence counsel. PW 2 - Vasegiri Narayan admits that accused was in police custody on 30.8.1993. It is further admitted that Crime 176/1993 was registered in connection with an incident which occurred on 30.8.1993. PW 2 - Vasegiri Narayan was confronted with the First Information Report in Crime 176/1993 (Exh. 241). PW 2 admits that the allegation in the First Information report was that the arms were recovered from the possession of the accused. The endavour of the defence was to bring on record that the First Information Report which was registered in connection with the incident of 30.8.1993 falsely implicated the accused who was admittedly in police custody when the incident occurred. PW 2 - Vasegiri Narayan admits that when raid in Crime 176/1993 was conducted, the accused was in police custody. PW 2 - ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
19 apeal369.17 Vasegiri Narayan states that he is not aware as to whether in Crime 176/1993 the accused was acquitted by the Court and the defence of false implication accepted. PW 2 - Vasegiri Narayan further denies the suggestion that the accused was prosecuted in Crime 176/1993 at his instance. PW 2 - Vasegiri Narayan is cross-examined on similar lines as regards implication of the accused in Crime 14/1993 which was registered for offence punishable under NDPS Act. The defence was successful in bringing on record that Crime 14/1993 was registered on 30.8.1993 pursuant to the raid conducted when the accused was in police custody. I do not have the advantage of perusing the judgment of acquittal in Crime 176/1993 and 14/1993 and it is therefore, not possible to speculate on the reasons recorded by the trial Court while acquitting the accused. PW 2 - Vasegiri Narayan denies the suggestion that the accused was acquitted since the defence of false implication was believed. Be that as it may, the admitted factual position that while the accused was in police custody on 30.8.1993, he was chargesheeted in Crime 196/1993 and 14/1993 and was accused of possessing the arms and the contraband, highlights the less than objective and dispassionate approach of the police machinery towards the accused.
15. The ocular evidence of PW 2- Vasegiri Narayanand and ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 ::: 20 apeal369.17 PW 4 - Ramesh Jawanjal is not confidence inspiring, for reasons articulated supra. The prosecution could have, infused some credibility in the prosecution story by forensic and scientific evidence. Admittedly and inexplicably, no attempt was made to collect the chance prints from the weapon seized. The panchanama of the seizure was an inconsequential ritualistic formality. The broken pieces of the glass of the windscreen which allegedly shattered due to the impact of the bullet are not subjected to any forensic analysis. It is well known that it is possible to deduce whether the shattering of the glass is due to a bullet or a small stone thrown at a comparatively high speed. It is also possible to deduce the direction of the shot from the appearance of the exit hole. A bullet striking perpendicularly against the glass, causes coidal fracture which is distributed uniformly around the hole and if the bullet strikes obliquely, the fracture is mostly concentrated on one side of the actual whole. A bullet fired from a distance of 1 to 2 ft leaves enough tell tale signs in the form of traces of the residue of the gun powder. The Investigating Officer made no attempt to collect any forensic evidence, which is inexplicable. Indeed, the only inference is that part - 2 of the prosecution story that the accused fired at PW 2 - Vasegiri Narayan from range of 1 - 2 feet and missed, is improbable, incredible and dangerously bordering on the dishonest. ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
21 apeal369.17
16. I am satisfied that the conviction of the accused is manifestly erroneous. The learned Sessions Judge clearly erred in not noticing the obvious. The learned Sessions Judge jettisoned the defence of false implication overlooking that the defence clearly established that the prosecution version was inherently incredible and unbelievable. The learned Sessions Judge failed to appreciate that the defence of false implication is proved on the touchstone of preponderance of probabilities. The unexplained injuries to the accused lend credence to the defence that while some altercation may have occurred at hotel Ashish, the false implication was designed to escape the consequences of the assault and the injuries caused to the accused. The implication of the accused in other crimes and in connection which incident which occurred when the accused were admittedly in police custody is equal eloquent.
17. The judgment dated 30.6.2017 rendered by the Additional Sessions Judge, Akola in Sessions Trial 234 of 2002 is set aside.
18. Accused - RanjitsinghGulabsingh Chungade is acquitted of offence punishable under section 353, 506, 294, 307 of Indian Penal Code and section 25 read with section 3 of the Arms Act. ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::
22 apeal369.17
19. Accused is in jail custody. He be released forthwith unless his custody is required in connection with any other crime.
20. Fine, if any, paid by the accused be refunded.
21. Appeal is allowed in the aforestated terms.
JUDGE adgokar/RSB ::: Uploaded on - 15/07/2019 ::: Downloaded on - 21/07/2019 11:58:05 :::