HASSAN KALOLO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been filed by Original Accused no. 2 (Hassan Kalolo) against the judgment and order dated 14/5/1999 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case Nos. 1091 of 1997 and 564 of 1998 tried jointly and decided by him by the aforesaid common judgment and order, thereby convicting the present Appellant (Original Accused No. 2) for the offences punishable under Sections 307 and 332 read with section 34 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for a period of 4 years and to pay a fine of Rs. 20,000/-, in default to further undergo rigorous imprisonment for a period of three months for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and sentencing him also under Section 332 read with Section 34 of the Indian Penal Code to suffer rigorous imprisonment for three years for the offence punishable under section 332 read with Section 34 of the Indian Penal Code.

(2.) THE Appellant (Original Accused No. 2) was tried along with Original Accused No. 1 who has not filed any appeal in this Court, along with the absconding accused Lamini. THE facts giving rise to thie filing of the present appeal by Accused no. 2 briefly stated are as follows : On 6/6/1997 at about 4 p. m. , Officers of N. C. B. , acting on specific information, raided a small Room no. 4-5, admeasuring 10' x 10', situated at Rajaramwadi, Bandra (West), Mumbai, hereinafter referred to as the said room. THE aforesaid Officers had taken panchas along with them. THEy reached the premises and knocked at the door. THE door was opened by the absconding accused Lamini. All the three accused persons were found in the said room. THE N. C. B. Officers introduced themselves to the accused Lamini and other accused, including the present Appellant and also disclosed the purpose of their visit. THEreupon, the absconding accused Lamini and other accused persons assaulted the N. C. B. Officers in an attempt to escape. THEy became violent and to bring the situation under control, Sadashiv Asawale (PW No. 1) took out his service revolver and demanded the accused persons to maintain order and desist from indulging in violence. Lamini, the absconding accused, however, pounced upon the said officer, snatched from him his service revolver and started firing indiscriminately. As a result of this firing by the absconding accused, not only one of the Officers, viz. Surendra Kavitkar (PW No. 5 ) sustained an injury but also the present Appellant (Original Accused No. 2) also sustained bullet injuries on his thigh and back. Surendra Kavitkar (P. W. No. 5) suffered bullet injury on his waist. During the event, it was alleged that Accused No. 2 (present Appellant) had bitten another Officer Narayan Tambe (PW No. 4) on his right palm. Similarly, one bullet was removed from the person of the Appellant (Original Accused No. 2 ). During the course of investigation, arrest of the accused persons was effected and after the investigation, the bullets which were found from the person of the N. C. B. Officer Surendra Kavitkar and the present Appellant, were sent to the Forensic Laboratory for the purpose of scientific examination. THE present Appellant, after his discharge from the hospital, was formally arrested. It appears that two separate Session cases were filed - one against Accused no. 1 and the other against the present Appellant. Apart from these two Sessions Case Nos. 1091 of 1997 and 565 of 1998, arising out of the event of assault and attempt to escape from the custody, main chargesheet came to be filed in the Special NDPS Case No. 407 of 1997. Entire evidence came to be recorded and the Appellant along with Original Accused No. 1 came to be convicted by the impugned order.

(3.) THE facts which can be said to have been established by the prosecution are that the Officers of N. C. B. , Mumbai, including Sadashiv Asawale (PW No. 1), Surendra Kavitkar (PW No. 5) and Narayan Tambe (PW No. 4) along with panchas had gone to said the premises at the aforesaid room on 6. 6. 1997 at about 4. 00 p. m. ; that all the accused were found in the said room and that on being told by the officers about the purpose of their visit and on disclosing their identity, the accused persons wanted to make their escape good and indulged in violence. It has also been established that the Officer Sadashiv Asawale (PW No. 1) took out his service revolver and directed the accused persons to keep order and desist from indulging in violence. It is also not in dispute that it was the absconding accused, who snatched the service revolver from the Officer and fired indiscriminately. It was on account of snatching away the service revolver by the absconding accused and he firing from it indiscriminately, that injuries were sustained by Surendra Kavitkar (PW No. 5) and the present Appellant (Original Accused No. 2) on his thigh and back. THE learned Judge has convicted the present Appellant (Original Accused No. 2) and the Original Accused No. 1, holding that they acted in concert to seek their escape at any cost.