1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1696 OF 2008 IN CRIMINAL APPEAL NO. OF 2008 The State of Maharashtra Applicant versus Raju Suresh Chavan & anr. Respondents Mr.P.S.Hingorani, APP for State. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 01st October 2008 PC :- 1. The State has filed this Criminal Application seeking leave to appeal against the judgement and order dated 31st January 2008 delivered by the Additional Sessions Judge, Pune in Sessions Case No.604 of 2005. The learned Sessions Judge has acquitted two accused of the charges of the offences punishable under sections 307, 332 in the alternative 353 r/w section 34 of Indian Penal Code as well as section 3 r/w sections 25 and 27 of the Arms Act. 2 The unusual part of the impugned judgement and order is that the learned Judge has not only acquitted the accused of the offences with which they are charged but has also directed that the learned APP to place a copy of the judgement before the DIG Pune to initiate stringent action against the Police Officers who were rewarded in this case. This part of the impugned judgement and order is based on the finding that the concerned Police Officers have cooked up a false story of an encounter to earn name and rewards by falsely implicating both the accused in this case. 3. The two accused involved in this case are admittedly the convicts in C.R.No.120 of 2001 registered under sections 302, 301, 324 of Indian Penal Code. Both of them were released on parole while undergoing the sentence. Allegedly, they did not surrender before the jail authorities even after lapse of their parole period. These accused have been falsely implicated in the present new case, the details of which are set out hereunder. 4. In nut-shell, the case of the prosecution as it appears from the impugned judgement is that one Mr.R.G.Jadhav (PW-10), an API of Chakan Police Station, received a tip to the effect that both the accused who had 3 committed serious offenses within the area of Pune City, were to pass on a motor-cycle from a particular road at the dead of the night on 22nd February 2005. Therefore, a trap was led by the Police. It is the case of the prosecution that in accordance with the tip received by them, in fact, both the accused on one motor-cycle reached the spot of incidence when the Police came out in open, where they had led the trap, and called upon the accused to stop. The accused no.1 who was driving the motor-cycle lost control and both the accused fell down. Both of them started to run away by leaving the motor bike. The Police party chased them. The accused no.1 fired two rounds in the direction of PW-10 out of which one hit his forehand and he was injured. PW-10 also fired two rounds from his service pistol in the direction of first accused but he missed the target on both the occasions. The accused no.1 stumbled on a stone, fell down and sustained injury to his mouth . The Police chasing him nabbed him. As far as second accused is concerned, it is the case of the prosecution that he also was carrying a Pistol and a knife. When Police Officers chased him and caught hold of him, with the help of knife, he gave blow to Mr.Giramkar, Police Head Constable (PW-3), in which he sustained an injury on his left forehand. However, he was overpowered by the police officers, a knife from him was snatched and he was also nabbed. 4 5. After completing the other formalities like drawing up of Panchanama etc. investigation was conducted. During investigation the Police seized the motor-cycle, two pistols, two empties, the service revolver, cloths etc. After completing the investigation charges were framed against the accused under the aforesaid provisions of law. 6. The accused pleaded not guilty and took up the defence that in the morning of 22nd February 2005 when both the accused were present in Rama Tea House at Aalandi, they were arrested by the Police along with one person Mr.Wankhede. However, for getting publicity and rewards, the Police have created a case of fake encounter and have implicated the accused falsely in the offences which they never committed. 7. On behalf of the prosecution three Police officials were examined, who were involved in the alleged encounter. They were PW-1 Mr.Shilimkar-PSI from Local Crime Branch, Pune Rural, who had filed the FIR (Exhibit-24) on 23rd February 2005 at Chakan Police Station. The other two witnesses were PW-3 and PW-10 aforesaid. The Police also examined the Chemical Analyser and Doctor (PW-9). Five Panch Witnesses were 5 examined who did not support the case of the prosecution. It is pertinent to note that no independent witness was examined and, as aforesaid, apart from the Chemical Analyser and the Doctor, all other witnesses were members of the alleged trap party. 8. Learned APP did not dispute the correctness of reproduction of the evidence by the learned Sessions Judge as reflected in the judgement under consideration. The conclusions drawn by the learned Sessions Judge on the basis of the evidence before him are to the following effect :- • The investigation was conducted by very same person Mr.Jadhav (PW-10) – a Police Officer who not only claims to have received the tip leading to the alleged trap but also claims to have conducted the entire operation leading to the arrest of both the accused in the alleged encounter. He also claimed to have sustained an injury on his forehand during the course of the alleged encounter, on account of the alleged bullet fired at him by the first accused. The learned Sessions Judge relied on the judgement of the Supreme Court delivered in the case of Bhagwan Singh Vs. State of Rajasthan reported in AIR-1976- SC-985 to conclude that this was a serious infirmity which was 6 bound to reflect on the credibility of the prosecution case. The learned Judge also found substance in the contention of the accused that these Police Officials feared that if the matter would be investigated by other officers independently, the truth might come out and that therefore the investigation was conducted by the same police officer who allegedly conducted the entire operation of the encounter. • The case of the prosecution that the alleged injury was caused to PW-10 during the incidence in issue, itself was disbelieved. The case of the prosecution in this regard was that PW-1 fired two rounds in the direction of PW-10; one of which is said to have led to an injury by way of abrasion of 8x1 cms. on his left fore-arm. Though the rotating projector discharged from a fire arm always causes de-glowing of skin. No such de- glowing of skin was found on the fore arm of PW-10. The Doctor (PW-9) who was examined by the prosecution, admitted during her evidence that when she issued the medical certificate, she did not feel that this injury on the body of PW- 10 was caused by a bullet and, therefore, she had mentioned in the medical certificate that the injury was caused only by a 7 weapon which was hard and blunt; Moreover, Nitrate Powder which normally falls on the cloths of the person who fires a Pistol, was not found on the hand of PW-10. Similarly, it was also not found on the cloths of first accused. Therefore, the case that the first accused fired two rounds and in answer thereto PW-10 also fired two rounds was not believed. • Inasmuch as, the injury allegedly caused to PW-3 by second accused during the course of incidence in issue is concerned, the same was also disbelieved. This injury was an abrasion 6x1 cms. again at the left fore-arm of PW-3. There was a discrepancy noted in regard to the evidence of PW-10 and evidence of Doctor (PW-9) as to the location of this injury on the body of PW-3. The Doctor during the course of her evidence admitted that she did not notice clear cut margins in regard to this injury though such margins are caused on account of use of sharp weapon like knife. • The alleged knife used by the second accused for attacking PW-3 which allegedly caused an injury to the fore-arm of the PW-3 was not sent to the Finger Prints Bureau to trace out the 8 finger prints of the second accused on it. Similarly, the alleged Pistol used by first accused for firing two rounds in the direction of PW-10 was also not sent to the Finger Print Bureau for tracing out the finger prints of first accused. • The Ballestic Expert could not prove the fact that two empties which were allegedly recovered from the scene of the offence, were fired from the Pistol that was allegedly seized from the first accused. • Though both the Pistols seized from both the accused though were, in fact, country made Pistols, it was shown as if they were of foreign make, by showing their worth as Rs.75,000/- and Rs.1,25,000/- only because of letters printed thereon to the effect that they were made in England and Italy. This was done only to show that the police have taken great risk in apprehending the accused. • The seizure of weapons from the spot of the alleged incidence was obviously false. According to the case of the prosecution itself, the weapons were immediately removed from both the accused after they were nabbed. Even then Panchanamas were drawn to show as if they were recovered in 9 presence of Panchas from both the accused. This aspect is to be noted in the background of the case of prosecution itself that late in the night the incident in issue occurred on a deserted public road connecting two villages. In any case all the five Panchas examined by the prosecution did not support the prosecution case. • It was the case of the prosecution that PW-10 after the alleged incident went to the Government Hospital for treating the alleged injury caused to him during the alleged encounter and then went home. He came back to the scene of offence only next day morning for drawing Panchanamas. However, the time when the Panchanamas was drawn, are shown around 00.30 a.m. to 02.00 a.m. on the very date of the incidence. The PW-1 during his evidence has stated that after drawing Panchanamas, he left the scene of offence at about 01.45 a.m. to 02.00 a.m. and loged the FIR at 02.30 a.m. in the Police Station. It is also claimed that it was the PW-10 who recorded the FIR. Thus, there was a clear and vital discrepancy as to the timings of the occurrence of events leading to drawing of Panchanamas and lodging of FIR. 10 • Vital discrepancies in the evidence lead the learned Sessions Judge to disbelieve the evidence even regarding the alleged possession of the motor-bike by the accused and its seizure by the Police from the spot of alleged incidence. • The case of the prosecution of receiving the tip off was also found suspicious and seriously doubtful by the learned Sessions Judge. The receipt of tip off was not noted down either by PW- 10 or by Mr.Wagh, who was the Police Inspector, Local Crime Branch, Pune Rural in the Station Diary or in the register of telephone calls. Serious discrepancies were also noted in the evidence of PW-1 and PW-3 in this regard. Similarly, serious discrepancies have been noted regarding the time of departure by the Police party for laying down the trap as also the vehicle used for going to the spot of incidence in issue. • Though it is claimed by the prosecution that at the time of trap, mobile phones were used by the the members of Police party involved in the trap for giving instructions to each other, no documentary evidence, in the nature of telephone records, was produced. • One Mr.Pawar, Police Officer, who was involved in the 11 alleged trap, who is supposed to have given the signals to the members of trap party by torch when the accused were about to reach the spot of the alleged incidence, was not examined to corroborate the evidence of PW Nos.1, 3 and 10. • In the FIR, no time at all has been mentioned of the arrest of the accused and the space is left blank. In this background, the discrepancies in the evidence of PW Nos.1 and 10 have been noted by the learned Sessions Judge, as PW-1 stated that the accused were caught at 11.30 to 11.45 p.m., whereas, PW- 10 states that they were arrested at about 1.30 a.m.. 9. With these and such other findings the learned sessions judge disbelieved the case of the prosecution that in a dare devil encounter which ensued on receipt of a tip off, all the Police Officers by putting their lives into danger apprehended two accused who were armed with deadly imported fire arms. On the contrary the learned Judge found probable the defence of both the accused that they were arrested in the morning of 22nd February 2005 when they were present in Rama Tea House at Aalndi along with one person Mr.Wankhede. 12 10. The learned Judge has noted in the impugned judgement that various Police Officers were rewarded for their alleged act of bravery in apprehending both the accused at the dead of the night even when they were armed with foreign made pistols and even when two of the alleged dare devil officers sustained injuries. The learned Judge has noted that such Police Officers were also rewarded who did not even play any role whatsoever in the alleged trap, even according to the prosecution. 11. The learned APP was unable to make even a dent in the aforesaid conclusions drawn and findings recorded by the learned Sessions Judge. We are also convinced that on the basis of the evidence placed on record it is not possible to take any view other than the view that has been taken by the learned Sessions Judge. 12. Having considered the judgement of the learned Additional Sessions Judge, Pune, in our opinion, this will not be a fit case to grant leave. We trust and hope that in terms of the order of the learned Sessions Judge, appropriate action will be taken by the DIG Pune in regard to the rewards conferred on the Police Officials, within six months from today. We direct that the final action taken report be submitted to this Court within two 13 weeks thereafter. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.)