2014 ALL MR (Cri) 3040
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P. V. HARDAS & P. N. DESHMUKH, JJ.

Arjun Ramchandra Pol Vs. The State of Maharashtra

10th October, 2013

Petitioner Counsel: Mr. M.K. KOCHAREKAR with SANDEEP BABAR
Respondent Counsel: Smt. U.V. KEJRIWAL

Penal Code (1860), S.307 - Attempt to murder - Plea of false implication - Incident of firing - Absconding co-accused with help of present accused fired gun shot in victim's back - Evidence of victim corroborating with injury certificate and evidence of prosecution witnesses - Investigation Officer recorded statement of victim after obtaining permission from doctor and lodged report immediately after incident - There was no possibility of false implication of accused - However, considering role attributed to accused, sentence of imprisonment of life and fine modified - Accused was sentenced for period of imprisonment already undergone by him. (Paras 13, 14)

JUDGMENT

P. N. DESHMUKH, J. :- Original accused No.3 Arjun Ramchandra Pol, hereinafter referred to as appellant, by filing this appeal takes exception to the judgment and order passed by the learned Ad-hoc Additional Sessions Judge-1, Islampura in Sessions Case No.36/06 dated 31st January, 2008 thereby convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- i/d. to suffer R.I. for one year.

Original accused No.1 Ramchandra Bhosale and No2 Rangrao Bhosale are acquitted of the offence punishable under Sections 307 of the Indian Penal Code.

2. In brief, it is the case of the prosecution that PW3 Rajendra Patil, the injured-complainant, involved in this case possessed ancestral land at village Shirashi against which there was some dispute between his grand-father and co-accused Ramchandra Bhosale and out of the said dispute, complainant's grand-father was murdered in the year 1985. Thereafter, in the year 1988 complainant's father and his uncle committed murder of one Balu Bhosale, while in the year 1996 complainant's uncle was murdered by Gunga Bhosale and his men and in the year 2004 Gunga Bhosale and his men further committed murder of complainant's father. According to the prosecution all these earlier cases ended in acquittal and that Gunga Bhosale is the son of co-accused Ramchandra. As per prosecution case, at the time of incident, the appellant was in the company of said Gunga Bhosale and were residing at village Shirashi and thus, were known by the complainant.

3. It is further case of prosecution that the incident took place in the night intervening 17th March, 2006 and 18th March, 2008 when PW3 Rajendra, complainant after attending his duty was returning on his motor cycle along with PW2 Arvind from Viswas Sugar factory where he was working as a watchman. On that day, complainant's duty hours was from 6.00 p.m. to 2.00 a.m. on the following day. After attending the duty when complainant along with PW2 Arvind reached near Kirvan Lake, they were intercepted on road by four persons who verified the registration number of the motor cycle and immediately thereafter, the appellant caught hold of PW3 Rajendra by his neck and bent him down when absconding accused Takalya fired on the backside of complainant by revolver and thereafter threw complainant down the bridge.

It is also the case of prosecution that in the course of same transaction, absconding accused as well as appellant filed on the shoulder of PW2 Arvind and also pushed him down the bridge and went away on their motor cycle as well as took away complainant's motor cycle.

4. PW2 Arvind on sustaining injuries went in the village and informed about the incident and accordingly came on the spot accompanied by complainant's uncle and others in ambulance wherein complainant was shifted firstly to Shirala police station and from there to Krishna Hospital, Karad. PW5 Chandrakant, P.I. on visiting Krishna Hospital, recorded complaint (Exhibit-36) of complainant Rajendra. Complainant was indoor patient in the hospital for a period of two months since he sustained bullet injury and also injury to his spinal cord.

5. On the basis of the report Exhibit-36,PW5 Chandrakant registered offence vide crime No.13/06 for the offence punishable under Sections 307, 394 r/w. 34 of the Indian Penal Code and under Arms Act and investigated the same. During the course of investigation, spot panchanama is prepared vide Exhibit-29 and effected seizure of complainant's motor cycle from Shirashi-Ambewadi road vide Exhibit-12. Clothes of PW2 Arvind and PW3 Rajendra were seized by A.S.I. Kandale vide panchanama Exhibit-13. After effecting arrest of accused Nos.1 & 2, clothes from their persons came to be seized. On 1st June, 2006 the appellant came to be arrested. On recording statements of witnesses and forwarding the muddemal articles to the Chemical Analyser, investigation was completed and charge-sheet came to be filed in the Court of learned Judicial Magistrate First Class, Shiral who has committed the case to the Court of Sessions for trial.

6. Charge is framed against the appellant along with co-accused Nos.2 & 3 for the offences punishable under Sections 307, r/w. 120(B), 394 r/w. 34 of the Indian Penal Code and under Section 3, 25 & 27 of the Arms Act, to which he pleaded not guilty and claimed to be tried. The defence of the accused is of total denial.

7. The prosecution has examined in all 5 witnesses and having considered the evidence on record, the appellant came to be convicted as stated above.

8. Heard Mr.Kochrekar, learned counsel for the appellant and Smt. Kejriwal, learned A.P.P. for the State. With the assistance of learned counsel, we have scrutinized the evidence on record.

9. PW3 Rajendra, injured and complainant has stated about the earlier incidents wherein his grandfather was murdered in the year 1985 and in the year 1988 his father and uncle had murdered one Balu Bhosale and in 1996 complainant's uncle Hemant was murdered. Thereafter, in the year 2004, his father was murdered by Gunga Bhosale, who is son of co-accused No.1 involved in this appeal. According to his further evidence, appellant Arjun was in the company of said Gunga Bhosale along with absconding accused and as such, he was knowing the appellant.

On the point of incident, complainant has stated that on 17th March, 2006 his duty hours were from 6.00 p.m. to 2.00 a.m. on the following day at Vishwas Sugar factory where he was working as a watchman and accordingly, at the time of incident he was returning from his place of work on his motor cycle bearing registration No.MH- 08-D-6755 accompanied by PW2 Arvind patil. It is stated that when they reached near Kirvan lake, they were obstructed by four persons on the road and after complainant PW2 Arvind got down from the motor cycle, the persons who had obstructed them verified the registration number of the motor cycle and immediately, thereafter appellant caught hold of complainant by his neck and after bending him down absconding accused fired on his back by a revolver and threw him from the bridge.

It is further stated by complainant that in the course of the same transaction, the appellant and absconding accused also fired on the shoulder of PW2 Arvind and pushed him from down the bridge and the assailants ran away on their motor cycle along with complainant's motor cycle.

It is stated by complainant that due to the injuries sustained by him, he was unable to stand and, therefore, asked PW2 Arvind to inform about the incident who accordingly went towards the village and in a short time returned back along with complainant's uncle in ambulance wherein the injured were taken to Shirala police station wherefrom they were taken to Krishna Hospital, Karad. It is further stated by complainant that when he was admitted in the hospital, his statement as per Exhibit-36 was recorded by PW5 Chandrakant Deshmukh, P.I. attached to Shirala police station and that he was admitted in the hospital for treatment for a period of two months. Said witness has identified the appellant in the Court during the course of trial.

10. In spite of lengthy cross-examination of complainant, nothing material is brought on record to doubt his ocular evidence. In fact, there is even no cross-examination on the point of incident except for bare suggestion that assault came to be committed by some unknown persons, which is denied by complainant. Though it is admitted by complainant that after the incident, he had not disclosed the name of the appellant or the absconding accused to his companion PW2 Arvind as their assailant, this admission by itself cannot said to be fatal to the prosecution in any manner as a person having been shot at by short arm and pushed below the bridge is not expected to disclose such details to anyone in such condition after the incident. Moreover, complainant has very much deposed that due to his physical condition, he was unable to tell said facts to PW2 Arvind, even otherwise, according to prosecution case, PW2 Arvind was very much with the complainant when both were assaulted. On the contrary, it is also deposed by complainant that after the incident, he was unable to stand. Evidence of complainant is fully corroborated by the medical certificate on record, which is not disputed. The same is at Exhibit-31, the contents of which corroborates the oral version of complainant.

11. Evidence of PW3 Rajendra, complainant also finds corroboration from the evidence of PW5 Chandrakant, PI, the investigating officer, when he has stated that in the night of 18th March, 2006 at about 3.00 a.m. when he was attached to Shirala police station, he was informed from the police station about two persons having sustained injury due to firing near Kirvan lake and accordingly, he visited the police station and then with the staff visited the spot, however, did not find any injured there but had noted blood lying on the spot. One constable was, therefore, deputed on the spot and since the investigating officer learnt that the injured are shifted to Krishna Hospital, Karad, he returned back to the police station, where he found that injured were in the ambulance at the police station, to whom he then sent to Krishna Hospital and also visited the same on making necessary station diary entries.

It is the specific evidence of PW5 Chandrakant that on his contacting the injured, he found him to be in a position of speak and thus recorded his statement as per Exhibit-36, and treating the same as F.I.R., registered the offence.

12. PW2 Arvind, who according to the prosecution was along with complainant at the time of incident, however, did not support the case of prosecution, but in his examination-in-chief, it has come on record that on 17th March, 2006 he along with complainant after attending their duty as watchman in Vishwas Sugar Factory at 2.00 a.m. in the night intervening 17th March, 2006 and 18th March, 2006 were returning back to their home on complainant's motor cycle. However, on their reaching near Kirvan lake, they were obstructed by by four persons due to which they got down from the motor cycle and immediately they were subjected to bullet injury and thrown down the bridge. Evidence of PW2 Arvind further reveals that he along with complainant, thereafter were taken to police station, Shirala and then to Krishna Hospital, Karad. As such, PW2 Arvind though had not involved the appellant, his available evidence on record as above certainly corroborates the version of complainant about the incident of PW2 and PW3 travelling on the motor cycle of complainant at the time of incident and about their interception at Kirvan lake in the midnight between 17th March, 2006 and 18th March, 2006 where they were subjected to bullet injuries.

13. Evidence of PW3 Rajendra, complainant is corroborated by evidence of PW1 Mansingh, though he too did not support the case of prosecution when he has deposed that on 18th March, 2006 at about 3.00 a.m. Mother of PW2 Arjun, who is his nephew, had knocked the door of his house and informed about incident of firing on PW2 Arvind on which he arranged for ambulance by making a phone call to Vishwas Sugar Factory and on visiting PW2 Arjun at his house, noted him to have sustained injury. His evidence further corroborates with evidence of complainant about his visiting spot in ambulance along with PW2 Arvind and finding PW3 Rajendra, complainant on the spot in injured condition who was carried in the said ambulance from the spot to Shirala police station and from there to Krishna Hospital, Karad.

Evidence of PW4 Mahadeo is on a circumstance of his seeing appellant on motor cycle at 10.00 p.m. along with absconding accused and of his seeing co-accused Ramchandra along with unknown persons on another motor cycle proceedings towards Shirala side. However, above evidence of PW4 Mahadeo in no way establishes the case of prosecution of any incident. Evidence of PW4 Mahadeo is also about earlier incidents of murder of grandfather, father, etc. of complainant over the dispute of land. This aspect does not appear to be seriously disputed by appellant nor there appears to be any investigation carried out on this aspect. In view of the above available evidence of injured, there is nothing to doubt his version so far as involvement of appellant in the present incident is concerned which evidence of complainant finds corroboration with the injury certificate which admittedly has not been disputed by defence. As such, there is no any dispute of injured sustaining injuries as mentioned in the injury certificate. Similarly, there is no serious challenge to the history of long standing enmity between him and his family members on one side and co-accused in this case. From the evidence of complainant, it is seen that due to inimical terms, his grandfather, uncle as well as father were murdered. However, we will not go into the undisputed fact when the evidence of complainant is independently considered, which stands corroborated with the injury certificate and materially with the evidence of hostile witness PW2 Arvind as well as evidence of PW5 Chandrakant, investigating officer. There is no room to doubt that at the time of incident, the appellant along with absconding accused and others caught hold of complainant by his neck and after making him to bend, absconding accused fired a gun shot in complainant's back.

Though it is also the case of complainant that prior to incident, co-accused had extended threats, etc. admittedly, no such incident is reported to police and as such, complainant's evidence on this aspect cannot be relied upon. Likewise, though from the evidence of PW2 Arvind, it has come on record that at the time of incident, he was returning from his work, after attending duty, by walk, and complainant thereafter came to him on his motor cycle with whom he accompanied while as per complainant's evidence both started on motor cycle ofter duty hours, this cannot be material inconsistency in the evidence of PW2 Arvind and PW3 Rajendra, as it does not relate to the actual incident occurred and since it does not go to the root of the matter. The above discrepancy in the evidence, therefore, needs no importance to be given.

14. Having considering above discussed evidence and specific evidence of PW5 Chandrakant, investigating officer, who has admitted that he had recorded the statement of injured complainant on obtaining permission from the Medical Officer and in fact had also personally verified that complainant was in a position to give his statement. Said evidence of investigating officer is in no way shattered in any manner, thus, there is nothing to doubt the truthfulness of the report which came to be lodged immediately after the incident which also rules out possibility of false implication of the appellant even if there is no investigation carried out with reference to the previous enmity between complainant and his family members with co-accused involved in this case on the alleged land dispute. There is no reason put forth by defence for complainant to falsely implicate the appellant. In that view of the matter, the prosecution can said to have established involvement of the appellant for commission of an offence punishable under Section 307 of the Indian Penal Code beyond reasonable doubt. However, having considering the role attributed to the appellant, the appeal is required to be partly allowed.

15. For the reasons stated above, Criminal Appeal is partly allowed, the conviction of the appellant / accused No.3 for offence punishable under Section 307 of the Indian Penal Code is maintained. However, the sentence of imprisonment for life and fine of Rs.10,000/- is set aside and instead the appellant is sentenced for the period of imprisonment already undergone by him, which is of 7 years and 4 months. In addition to the substantive sentence of imprisonment, which is modified, the appellant is also liable to pay a fine of Rs.20,000/- i/d. to suffer R.I. for one year. The amount of fine, if recovered, be paid to P.W.3 Rajendra Yeshwant Patil. Since the appellant has already undergone the sentence, he be released forthwith if not required in any other case.

16. Appeal is thus partly allowed.

Appeal partly allowed.