RAJPAL SHYAMLAL SOUDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal takes exception to the judgment and order dated February 21, 1987 passed by the 5th Additional Sessions Judge, Thane in Sessions Case No. 243 of 1985.

(2.) THE appellant alongwith two others was prosecuted in connection with the alleged offence punishable under sections 307, 427 read with 34 of the Indian Penal Code and under sections 25 (1) (a) and 27 of the Indian Arms Act read with section 34 of the Indian Penal Code. They were also charge-sheeted for offence punishable under sections 4 and 5 of the Explosive Substance Act read with section 34 of the Indian Penal Code. The trial Court however, has convicted the appellant- accused No. 1 only for the offence punishable under section 307 read with 34 of the Indian Penal Code and sentenced to suffer R. I. for 7 years and to pay fine of Rs. 500/- in default to undergo further rigorous imprisonment for 6 months. The appellant-accused No. 1 has been acquitted of all the other charges. Even the accused Nos. 2 and 3 have been acquitted of all the charges.

(3.) THE incident in question took place on April 10, 1985. It is the prosecution case that, one Gopal was arrested in connection with Crime No. 134 of 1985 for offence punishable under section 395 of the Indian Penal Code by the Police Station, Vitthalwadi and he was required to be taken to the Court for the purpose of remand. The Senior Inspector of the concerned Police Station directed P. S. I. Mr. Kulkarni (P. W. 9) to take the said Gopal to the Court. On the basis of those instructions, said P. S. I. Kulkarni (P. W. 9) alongwith A. S. I. (P. W. 4), Police Constable Miya (P. W. 1), Gulab (P. W. 2) started from Police Station, Vitthalwadi at about 2. 35 p. m. , on that day. The said Gopal was handcuffed and tied with the rope. It is stated that, since the police jeep was out of order, P. S. I. Kulkarni called for two auto rickshaws. Said Gopal was made to sit in the centre and P. W. Nos. 1 and 2 were sitting on his left and right side respectively. Whereas, P. S. I. Kulkarni (P. W. 4) occupied the other auto rickshaw. All of them started from Police Station, Vitthalwadi towards the Court. On their way, when the auto rickshaw reached near Shiv Mandir, the front rickshaw in which the said Gopal and P. W. Nos. 1 and 2 were occupying was stopped and the rickshaw driver ran away, having noticed three persons standing in the middle of the road-two of them were holding weapons like revolvers. As soon as the rickshaw stopped and the rickshaw driver ran away, said three persons standing on the road came from the front side. One of them holding revolver came from the left side of the rickshaw and the other person who was also holding revolver came from the right side of the rickshaw. It is the prosecution case that, the moment front rickshaw stopped, Police Constable Miya (P. W. 1) and P. W. 2 alighted from the auto rickshaw and they saw that, one hand bomb exploded in front of the auto rickshaw. At the same time, they saw that two persons coming from left and right side of the auto rickshaw were firing towards the said Gopal who was sitting in the rickshaw. Police Constable Miya (P. W. 1) who alighted from the left side of the auto rickshaw accosted one person who is stated to be the appellant before this Court and accused No. 1. Whereas, the Police Constable Bhargude (P. W. 2) went towards the P. W. 1 Miya who was making efforts to over power the appellant-accused No. 1. Both of them succeeded in accosting the appellant-accused No. 1. This is the substratum of the prosecution case. The accused No. 1 was arrested on the spot, whereas the accused No. 2 and 3 succeeded in fleeing who were later on arrested during the course of investigation. After investigation was completed, charge-sheet was filed and as the matter was exclusively triable by the Court of Sessions, the same was remitted to the Sessions Court, Thane. The prosecution examined in all 10 witnesses as prosecution witnesses in support of its case; whereas, the accused No. 3 examined D. W. 1 Rita John Patole, Staff Nurse, Central Hospital, Ulhasnagar to establish his plea of alibi. On examining the materials on record, the trial Court by the impugned judgment and order was pleased to acquit the accused Nos. 2 and 3 respectively of the alleged charges. The trial Court accepted the plea of alibi put forth by the accused No. 3 as the same was supported by evidence in that behalf. In so far as the accused No. 2 is concerned, the trial Court found that, the prosecution evidence was not sufficient to bring home the guilt against the accused No. 2. According to the trial Court, none of the prosecution witnesses had identified the accused No. 2. In so far as P. W. No. 1 is concerned, he did not state anywhere about the presence of accused Nos. 2 and 3, at the time of incident. The trial Court further found that this witness did not give description of accused No. 2 before the police nor even remotely suggest that he would identify the accused No. 2 and moreover, no identification parade was held, so as to identify the accused No. 2. While considering the evidence of P. W. No. 9, the trial Court has found that this witness admits that he only saw back of the said person and that evidence was not sufficient to even remotely suggest that, he could have identified the accused No. 2. In the circumstances, the trial Court found that, the identity of accused No. 2 has not been established by the prosecution for which reason he was entitled to be acquitted of the alleged charges. Even after having acquitted, the accused Nos. 2 and 3, who were the only accused stated to have participated alongwith appellant-accused No. 1 in the commission of the alleged offence, the trial Court preferred to convict the appellant-accused No. 1 on the same evidence for offence punishable under section 307 read with 34 of the Indian Penal Code. The trial Court has found that the prosecution evidence in the shape of P. W. No. 1, P. W. 2 and P. W. No. 9 was consistent that more than one accused had participated in the commission of the alleged offence and since the identity of accused No. 1 has been established, he could be convicted under section 307 read with 34 of the Indian Penal Code. It is this decision which is the subject-matter of appeal at the instance of appellant-accused No. 1 before this Court. It is not in dispute that, the State has not challenged the order of acquittal passed in favour of other two accused, though they were stated to have participated in the commission of the alleged offence.