PRABHAKAR TUKARAM MANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the conviction of the appellant/original accused No. 2 by the learned Additional Sessions Judge, Thane for offences punishable under Section 307 r/w Section 34 of the Indian Penal Code (for short, "IPC") and Section 27(1) of the Arms Act and sentences of rigorous imprisonment for seven years with fine of Rs. 500/- and three year with fine of Rs. 500/- imposed upon him on conclusion of trial of Sessions Case No. 603 of 1989 before him. Facts which are material for deciding this appeal are as under:-

(2.) The learned Additional Sessions Judge to whom the case was made over, charged the present appellant as well as the other two co-accused of offences punishable under Section 307 r/w Section 34 of the IPC and Sections 25(1)(c) and 27 of the Arms Act. Since the accused persons pleaded not guilty, they were put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home the guilt of the accused persons. After considering their evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant and accused No. 1 of the aforesaid offences while he acquitted accused No. 3 of the offences charged. Aggrieved thereby, only accused No. 2, the present appellant, has preferred this appeal.

(3.) I have heard the learned counsel for the appellant and the learned Addl. Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the evidence on record. There can be no doubt that PW-1 Bhagwan Jagtap, the Jailor, suffered a firearm injury on the incidental day, i.e., 28-12-1988. The question is whether the appellant is shown to be the author of the injury sustained by Jagtap. PW-1 Jagtap stated in his deposition that on 28-12-1988, at about 2:15 p.m. when he was reading newspaper in the verandah of his house, a blue coloured Fiat car came there, three persons alighted from it, of whom he identified two as accused Nos. 1 and 2. All three pointed revolvers at him from the gaps of the door of the quarter and fired at him. He sustained injuries. Accused No. 1, not the appellant, is stated to have abused the victim by telling him that the victim was behaving in a high-handed manner with prisoners and therefore had to be taught a lesson. The witness then stated that he went to the jail from where he was shifted to the hospital and the pellets were removed. He sought to prove the statement recorded by the police when he was in the hospital which has been marked by the learned Judge as Exhibit-18 in spite of objection raised by the learned defence counsel. The learned counsel for the appellant is right in submitting that Exhibit-18 could not have been the First Information Report, since the information first in point of time in respect of the incident which had reached the police station is Exhibit-30, the report given by PW-2 Abhiman Randive, a colleague of PW-1 Jagtap. Therefore, Exhibit-18 has no evidentiary value and cannot provide any corroboration to the evidence of PW-1 Jagtap.