18. cr appa 1219-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1219 OF 2010 IN CRIMINAL APPEAL NO. 753 OF 2010 Saurabh @ Ranjan Singh @ Vinay Hira Singh Thakur .. Applicant Vs The State of Maharashtra .. Respondent Mr. Prashant Gurav for the Applicant Ms. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 25th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the applicant-original accused and learned APP for the State. 2. The applicant has been convicted under Section 307 of IPC and Sections 5 read with 27 of the Arms Act. For the offence under Section 307, he has been sentenced to seven years imprisonment. 3. Learned advocate for the applicant submitted that there are two eye witnesses i.e injured PW 3 Janardan Sakpal and PW1 Ashok Karnikar. He submitted that though both these 1 18. cr appa 1219-10.doc witnesses know the applicant, the FIR has been registered against unknown persons. He submitted that this shows that the applicant was falsely involved in this case. 4. The prosecution case briefly stated is that on 14th November 2005, PW 3 Janardan and PW 1 Ashok were proceeding in jeep of PW 3. At about 11.15 p.m, the applicant and other accused came on motor cycle. Applicant started firing at PW 3 with country made pistol which hit PW 3 on right cheek. PW 3 sustained injury and fell down. He was taken to Sion hospital. From there, he was transferred to Bombay hospital where he came to be operated. 5. Learned advocate for the applicant drew my attention to the evidence of PW 3 Janardan wherein he has stated that the applicant, prior to the incident was known to him. He submitted that in such case, the FIR could not be lodged against unknown persons. No doubt, PW 3 has so admitted in his cross-examination but it is observed that he is not the first informant and the first informant is the PW 1. PW 3 Janardan sustained injury on his right cheek and became unconscious and he was admitted to hospital in an unconscious state. On account of being unconscious, his statement could not be recorded, hence, FIR of PW 1Ashok came to be recorded. As far as PW 1 is concerned, he has not stated anywhere that 2 18. cr appa 1219-10.doc he knew the accused persons nor it has been elicited in the cross-examination that he knew the accused persons. In such case, just because PW 1 lodged the FIR against unknown persons, it cannot be said that the applicant is not involved in the present case. The evidence of PW 1 and PW 3 clearly shows that it was the applicant who fired at PW 3. 6. Learned advocate for the applicant pointed out that PW 3 stated that PW 1 also knew the accused persons prior to the incident. As far as this aspect is concerned, as observed earlier, PW 1 has not stated that he knew the accused persons, so also nothing has been elicited in his cross- examination. In fact, in his cross-examination, there is not even a whisper of any suggestion to PW 1 that he knew the accused persons. Thus, I find no merit in this submission. 7. Thereafter, learned advocate for the applicant submitted that both PW 1 and PW 3 stated that the accused came on Yamaha motor cycle. However, the motor cycle which came to be seized is Pulsar motor cycle. He submitted that this discrepancy raises doubt about the veracity of the prosecution case. In my view, as far as the accused persons are concerned, there is no discrepancy in relation to their identification or in relation to their role, hence, the 3 18. cr appa 1219-10.doc discrepancy in relation to the vehicle is not material and it would not affect the prosecution case. 8. It is also to be noted that during pendency of the trial, the applicant came to be released on bail on 10th August 2006. Thereafter, he did not attend the trial Court, hence, Sessions Court, Sewree issued proclamation against the applicant on 12th April 2007. Thereafter, he came to be arrested on 11th November 2009. As the applicant was absconding, his case came to be separated from the other four accused and thereafter, he came to be tried separately and came to be convicted. It is observed that the applicant has been absconding for almost two and half years. Moreover, the applicant is involved in two other cases i.e C.R. No. 372 of 2005 in which he was convicted by judgment and order dated 28th June 2006 and LAC No. 57 of 2009 wherein he came to be arrested on 11th November 2009 by DCB CID Unit 11 while he was found in possession of fire arm. 7. Looking to all the above facts, I do not think that this is a fit case to grant bail. Hence, application is rejected. 8. Hearing of the appeal is expedited. The appeal be placed on final hearing board as soon as the paper books are 4 18. cr appa 1219-10.doc ready. [SMT. V.K. TAHILRAMANI, J.] 5