(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. CRIMINAL APPEAL NO. 166 OF 2010 Ritesh s/o. Balveersing Sauda, Age : 27 years, Occupation : Agriculture, R/o. Bhangiwada, Balbhimnagar, Beed, Taluka & District : Beed. .. Appellants versus 1. The State of Maharashtra. 2. Pruthvi Dharamsingh Pival, Age : 40 years, Occupation : Labourer, R/o. Bhangiwada, Balbhimnagar, Beed, Taluka & District : Beed. .. Respondents. ....................... Smt. S.S. Jadhav, Advocate, for the appellant. Mr. D.R. Korde, Additional Public Prosecutor, for respondent no.1. Respondent no.2 served (Absent). ........................ (2) CORAM : SHRIHARI P. DAVARE, J. Date of reserving the judgment : 12th July 2011. Date of pronouncing the judgment : 29th July 2011. JUDGMENT : 1. The challenge in the present appeal is to the conviction and sentence imposed upon the appellant, namely, Ritesh s/o. Balveersing Sauda, by way of judgment and order dated 30th March 2010, rendered by the learned Additional Sessions Judge-I, Beed, in Sessions Case No. 91/2009, thereby convicting the appellant (original accused) for the offence punishable under Section 307 of Indian Penal Code, and sentencing him to undergo rigorous imprisonment for 4 years and to pay fine of Rs. 20,000/-, in default of payment of fine, to undergo further rigorous imprisonment for one year, and also, convicting him for the offence punishable under Section 27(1) of the Arms Act, and sentencing him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 1,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 6 months, and also directing that out of the said fine amount, an amount of Rs. 15,000/- be paid to the (3) complainant, namely, Pruthvi s/o. Dharamsing Pival, by way of compensation, as well as, further directing that both the substantive sentences to run concurrently, and also directing that the appellant was entitled for set off as per provisions of Section 428 of Cr.P.C. for the period under custody, whereas, he was acquitted for the offence punishable under Section 25(1-B) of the Arms Act. 2. The factual matrix of the prosecution case, and facts and events leading to the present appeal are as follows : (a) The complainant, namely, Pruthvi s/o. Dharamsing Pival, who is the victim in the present matter, was admitted in Civil Hospital, Beed, on 11-4-2009, in injured condition and his statement was recorded by P.S.O. of Police outpost in Civil Hospital, Beed, and on that basis, Crime No. 39/2009 was registered by Police Inspector, Angad Sudke (PW 11) who was attached to Police Station, Peth, Beed, on the relevant day. (b) According to the said complainant, he resides at Balbhimnagar, Beed, along with his mother and three brothers, and carries out the business of selloing pig flesh. The appellant (original accused), namely, Ritesh s/o. Balveersing Sauda, is also resident of Balbhimnagar, Beed, and he used to purchase pig (4) flesh on credit. It is also alleged that on 11-4-2009, at about 8 to 8.30 a.m., complainant Pruthvi approached the accused to recover his amount of sale of pig flesh and demanded the said amount due from the accused. However, the accused questioned the said dues and refused to pay the same and also abused the complainant. Moreover, it is also alleged that the accused took out a country made revolver and fired a bullet on the person of complainant Pruthvi, and thereby, he sustained injury on his nose, as well as, the brother of accused, namely, Deepak Balvirsing Sauda, caught hold of the complainant and assaulted him with kicks and blows. On receiving the bullet injury, the complainant fell down and there was bleeding. At this juncture, the complainant's brother, namely, Rohatas Dharamsing Pival, and neighbourers came there and intervened and took the complainant immediately to the Civil Hospital, Beed, in injured condition, and his statement i.e. complaint was recorded as mentioned herein above, and on its basis, offence came to be registered against the accused under C.R. No. 39/2009 at Police Station, Peth, Beed, on 11-4-2009, at about 01.15 p.m. for the offence punishable under Section 307 read with Section 34 of IPC, and also under Section 27(1) of the Arms Act. (c) It is alleged that P.I. Angad Sudke (PW 11) visited the place of incident and recorded panchanama of place of incident, (5) Exhibit 20, in the presence of Panchas and seized simple mud and blood stained mud at the place of incident, as well as, recorded statements of witnesses. (d) Besides, the complainant Pruthvi was referred to Apex Hospital at Aurangabad. Hence, P.I. Angad Sudke (PW 11) issued request letter to Jinsi Police Station, Aurangabad, to record dying declaration of the complainant, as well as, sent Police Head Constable Shri Deshmukh to Aurangabad to seize blood stained clothes of the complainant and accordingly, Police Head Constable Shri Deshmukh seized blood stained clothes of the complainant at Aurangabad and brought the clothes seized along with the dying declaration of the complainant. Moreover, P.H.C. Shri Deshmukh also seized the part of the bullet taken out from nose of the complainant after operation, and brought it to the Police Station. Accordingly P.I. Angad Sudke (PW 11) arrested the accused on 24-4-2009 under the arrest panchanama Exhibit 60. (e) It is further alleged that on 25-4-2009, accused made voluntary statement to show the place where revolver and clothes were concealed and the said statement was recorded under memorandum Exhibit 55, and he led the Police personnel and Panchas to a ditch in front of Kesapuri Camp at Majalgaon and (6) one pant, shirt and plastic carry bag were discovered from the ditch in the presence of Panchas and the same were seized under Panchanama Exhibit 56. Again on 1-5-2009, accused made voluntary statement in the presence of Panchas to show the place where revolver was concealed and accordingly, said statement was recorded under memorandum Exhibit 57, and the accused led the Police personnel and Panchas to a heap of sand near his father's house near Pathak Mangal Karyalaya and took out the revolver underneath heap of the sand and the same was seized under Panchanama Exhibit 58. (f) P.I. Angad Sudke (PW 11) obtained blood sample of the accused and the blood sample of the complainant. Thereafter, he sent all seized articles to Chemical Analyser's office at Mumbai for analysis purpose along with forwarding letter Exhibit 51. However, the piece of bullet was returned by the Chemical Analyser's office with some inquiries and the said letter is marked as Exhibit 53, and the said queries were replied. (g) It is also alleged that P.I. Angad Sudke (PW 11) recorded statements of witnesses, namely, Rohataj Dharamsing Pival and Digamber Asaram Gaikwad i.e. eye witnesses. Moreover, M.L.C. in respect of injuries sustained by complainant Pruthvi was also obtained and the nature of injuries sustained by him (7) were grievous, and Dr. Simit Shah (PW 12) performed the operation on complainant Pruthvi and he was admitted in the Apex Hospital at Aurangabad from 11-4-2009 to 20-4-2009, and the said Medical Officer opined that the injuries sustained by complainant Pruthvi were sufficient in ordinary course of nature to cause his death, if timely treatment was not given to him. (h) Pursuant to the seized articles sent to the Chemical Analyser's office, C.A. report regarding blood stained mud and clothes of the accused and the complainant were received and it was disclosed that blood of "B" group was noticed on the articles seized. Moreover, report of the Ballistic Expert was also received and the Ballistic Expert opined that the revolver pistol seized in the crime was in working condition and capable of firing 7.65 mm pistol cartridges and the same was used before testing. It was also found that the piece of bullet seized from nose of the complainant was piece of postol bullet. (i) After completion of investigation, it transpired in the investigation, that the accused fired bullet on the person of complainant Pruthvi, from a revolver / pistol, who came to house of the accused for demanding dues of pig flesh, and brother of the accused, Deepak, also assaulted him with kicks and blows, and accordingly, both of them attempted to kill complainant (8) Pruthvi, and accused / appellant, Ritesh, was found in possession of revolver, without license, which was used for committing the crime. However, said Deepak i.e. brother of the accused ran away from the place of incident and he was absconding till filing of charge sheet. 3. Accordingly, charge sheet came to be filed against the accused only and case under R.C.C. No. 467/2009 was registered in the court of Judicial Magistrate (First Class), Beed. Since charge under Section 307 of IPC levelled against the accused was exclusively triable by the Court of Sessions, learned Judicial Magistrate (F.C.), Beed, committed the said case to the Court of Sessions at Beed, by order dated 30-7-2009. 4. Accordingly, charge was framed against the accused on 16-10-2009, Exhibit 4, for the offences punishable under Section 307 of IPC, and Sections 25(1-B) and Section 27(1) of the Arms Act. The accused pleaded not guilty to the said charges and claimed to be tried. 5. To substantiate the charges levelled against the accused, the prosecution examined as many as 14 witnesses as mentioned below :- (9) (1) Kakasaheb Gadhe (PW 1) - Panch witness to seizure of revolver and cartridges, Exhibit 18. (2) Satyawan Daka (PW 2) - Panch witness to spot panchanama, Exhibit 20. (3) Pruthvi Piwal (PW 3) - Victim / injured / complainant. (4) Pal Chavan (PW 4) - Panch to seizure panchanama of the clothes of complainant, Exhibit 24. (5) Dr. Pramod Shinde - Medical Officer at Civil Hospital, (PW 5) Beed, who examined the complainant and issued injury certificate Exhibit 27. (6) Rohtaj Piwal (PW 6) - Brother of complainant Pruthvi. (7) Digambar Gaikwad - Eye witness. (PW 7) (8) Rameshwar Taat, API, - Who filed the charge sheet. (PW 8) (9) Vasudeo Patil (PW 9) - Ballastic Expert. (10) Syed Imtiyaj Syed Iqbal - Panch to memorandum and (PW 10) panchanama (Turned hostile). (11) Angad Sudke, P.I., - Investigating Officer. (PW 11) (10) (12) Dr. Simit Shaha (PW 12) - Surgeon at Apex Hospital at Aurangabad, who performed surgery upon nose of the victim. (13) Kisan Shingne, P.S.I., - Second Investigating Officer. (PW 13) (14) Ramesh Kayande (PW 14) - Resident Deputy Collector at Beed. 6. The defence of the accused is of total denial and he stated that he has been implicated in this case falsely and claimed to be innocent. He also gave short statement and tried to explain the incident, and according to him, on 14-4-2009, Pruthvi came outside his house and called him, and one unknown person was with Pruthvi, and both of them dragged him out on the road and assaulted him, and thereby he sustained bleeding injury on his mouth and the said blood fell on his shirt and pant, and his blood group is "B", and the unknown person with the accused instigated Pruthvi saying that, "Mar, Mar", whereas he was trying to rescue himself from Pruthvi. He has also stated that unknown person fired a shot of shot gun (Charra) on him, but it strike against Pruthvi, and as such, Pruthvi sustained injury and due to old enmity, Pruthvi implicated the accused in this case falsely. Accused has further stated that the complainant Pruthvi and one (11) municipal councillor filed criminal case against him earlier also. 7. After considering the oral, documentary and medical evidence, as well as, submissions advanced by the learned Counsel for parties, learned Trial Court convicted and sentenced the accused as afore stated. Being aggrieved and dissatisfied by the said order of conviction and sentence, the appellant has preferred the present appeal challenging the same and prayed for quashment thereof. 8. Before adverting to the submissions advanced by the learned Counsel for parties effectively, it is necessary to deal with the material evidence adduced and produced by the prosecution, and in the said context, testimonies of Pruthvi (PW 3) i.e. victim; Rohtaj (PW 6) i.e. brother of the complainant; Digambar (PW 7), eye witness; Dr. Pramod Shinde (PW 5), Medical Officer at Civil Hospital, Beed, and Dr. Simit Shaha (PW 12), and Vasudeo Patil (PW 9), Ballistic Expert, are important, and coming to the deposition of Pruthvi (PW 3), who has stated that he knows accused Ritesh who belongs to his caste and he used to purchase mutton, whereas Pruthvi (PW 3) used to deal with sale of pig mutton. He has stated that the incident occurred on 11-4-2009 at about 8.30 a.m. and he had been to the house of accused which was situated at about 200 to 250 feet from his house, since he (12) wanted to recover money of flesh purchased by accused from him. Accordingly, Pruthvi (PW 3) called the accused outside the house and thereupon accused Ritesh came out of his house, and Pruthvi (PW 3) asked him for the amount of flesh which he had purchased from him. Thereupon, Ritesh asked Pruthvi (PW 3), as to what money (Kashache Paise), and he told that he would not pay the amount. Moreover, accused abused Pruthvi (PW 3) and also manhandled him. Moreover, his brother Deepak also came there, who assaulted Pruthvi (PW 3) with kick blows. He has further stated that accused Ritesh took out revolver and fired at him, and thereby he received said blow on left side of his nose and fell down. Rohtaj i.e. PW 6 and Kisan Piwal came there and took Pruthvi to Civil Hospital, Beed. He has further stated that his statement was recorded by Police personnel as per his narration and the same was treated as complaint Exhibit 22. He has also stated that from Civil Hospital, Beed, he was referred to Apex Hospital at Aurangabad and he was admitted there for about 3 to 4 weeks. He has further stated that his clothes were blood stained and Police personnel seized the said clothes. According to him, prior to 10 to 12 years of the incident, accused Ritesh and his brother Deepak assaulted his brother Rohtaj and Naresh with sword, and Deepak was convicted in the said case, whereas accused Ritesh was acquitted. He also identified the revolver used by the accused during occurrence of the incident. (13) 9. During cross examination, Pruthvi (PW 3) has admitted that he does not have license of mutton shop. He has also stated that one case is pending against him for assaulting one Ashok Waghmare. A suggestion was given to him, that he lodged false complaint against the accused to extract money from him, but the same was denied by him. He has stated that there is one Maruti Mandir at a distance of about 400 feet on the western side of his house. However, he has stated that he did not go to said Mandir before going to the house of the accused. It was suggested to him that there are number of houses adjacent to each other by both the sides of the road going to the said Mandir from the house of Lahot, but the same was denied by him. As regards the incident, he has stated that nobody met him when he went to the house of the accused. He gave call to the accused from a distance of 10 to 15 feet and thereupon accused came out immediately. He has also stated that he did not feel frightened when he went to the house of accused. He has further stated that he did not see revolver in the hand of accused when he saw him first. He has further stated that he did not try to run away after seeing accused and his brother. He has denied that revolver was fired in the open space opposite house of the accused. He has further stated that the distance between Nali at the place of incident and that of house of the accused was about 40 feet. He (14) has further stated that he did not cry for help after revolver shot. He also did not hear anybody crying for help. He has further stated that the entire incident might have taken place within 3 minutes. He has further stated that Deepak followed accused after he gave call to the accused. He has also stated that he fell down on the shoulder after receiving the shot. He did not receive any injury on the shoulder but still it gave pain. He has further stated that none of the neighbourers came at the spot at that time. He has also stated that he did not hear revolver shot twice. He also did not try to run away after he saw revolver and he never thought that accused would fire at him. He has further stated that accused might have fired shot from revolver at a distance of 7 - 8 feet. According to him, the bullet was fired by the accused when he was opposite to him. 10. He has further stated that he did not state to the Police personnel that his brother Rohtaj intervened into the quarrel. Moreover, he did not state to the Police personnel that he received bullet on his eye, and denied the contents of portion mark "A" amounting to contradiction between his statement and his testimony. He has further deposed that he stated to the Special Judicial Magistrate that accused Ritesh fired bullet from revolver on his eye. He has also denied that the article which entered into his nose was not a bullet, but a metal bid (Chharra). (15) He has further denied that he made allegations against accused to extract money and because of enmity with him. 11. That takes me to the deposition of Rohtaj (PW 6) i.e. brother of victim Pruthvi, who stated that Pruthvi is his younger brother and he knows accused Ritesh. Pruthvi used to sell pig mutton, and accused Ritesh used to purchase pig mutton from him. Pruthvi was to recover money for such mutton from the accused. The incident occurred on 11-4-2009 when Pruthvi had been to the house of the accused for recovery of money for flesh. At about 8.30 a.m., he suspected that Pruthvi may be assaulted, and therefore, he followed him, and gave reason for said suspicion that there was quarrel between them prior to about 10 to 12 years, wherein he lost his small finger since he was assaulted with sword and Deepak, brother of accused, was convicted therefor. He has also stated that Pruthvi (PW 3) was assaulted by kicks and blows by Deepak and accused Ritesh fired bullet shot on Pruthvi and thereby he sustained bullet shot on his nose and it was bleeding. He has further stated that he himself, Digambar Gaikwad, Narsing, Vijay Piwal, Baban etc. took Pruthvi to Civil Hospital by autorickshaw, and thereafter, Pruthvi was shifted to Apex Hospital at Aurangabad, as per advise of the Doctor. He has further stated that he showed the place of incident to Police personnel when they came for inquiry. (16) Accordingly, his statement was recorded by Police personnel on the very day. He identified Ritesh also. 12. In the cross examination, Rohtaj (PW 6) has stated that he a Sweeper in Nagar Parishad and on the date of incident, he had been on duty early in the morning and came back before incident and Nagar Parishad office is situated about 20 minutes walking distance from his house. As regards the incident, he has stated that after taking Darshan in Mandir, Pruthvi (PW 3) was going towards house of the accused, and he was aware that Pruthvi was to bring money from the accused since he told the same to him at about 8.00 a.m. He did not advise Pruthvi not to go house of the accused. He was at a long distance when Pruthvi called accused Ritesh. He has also stated that one has to cross the open space opposite to the house of accused, in order to approach house of the accused. He has further stated that he was standing on road when Pruthvi gave call to accused. Accused and his brother Deepak came out of the house after Pruthvi gave a call. Thereafter, Deepak started assaulting his brother Pruthvi by kicks and blows. He has further stated that Deepak first came out and accused Ritesh followed him. He was at a distance of 40 feet but he did not intervene when Deepak assaulted his brother. He has also admitted that he is stronger than the accused. He has further stated that he did not think of calling the people from (17) Mandir to save his brother who fell down after receiving bullet shot since he felt fainted. He has further stated that there were blood stains on the clothes of his brother Pruthvi, but there were no stains of blood on his shirt. The accused persons ran away immediately. A suggestion was given to him that the relations between family of the accused and his family were not good, but the same was denied by him. He volunteered that they were on talking terms, but there is no cross examination for the said voluntary statement. It was also suggested to him that their relations became more strained as he teased the family members of the accused, but the same was denied by him. A suggestion was given to him that there was scuffle between accused Ritesh and Pruthvi (PW 3), but the same was denied by him. It was also suggested to him that Pruthvi asked his friend to fire a shot with revolver and his friend accordingly fired a shot and the said revolver shot was received by Pruthvi inadvertently, but the same was denied by him. He has further denied that he was working on duty in Nagar Parishad at the time of incident. 13. Coming to the testimony of eye witness Digambar (PW 7), who has stated that he knows Pruthvi (PW 3) and his brothers Rohtaj and (PW 6) and Kisan, as well as, he knows accused Ritesh and his brother. He has stated that the incident occurred on 11-4-2009 and it was Saturday, and the time might (18) be between 8.00 to 8.45 a.m., when he himself, Narsing Piwal, Vijay Piwal and Ramdas Vitkar were sitting on the lap in front of house of Pratap Lahot. The house of accused Ritesh is opposite to the house of Pratap Lahoti. Pruthvi (PW 3) came nearby the road near Nali and gave call to accused Ritesh. Thereupon, accused Ritesh came out and there was altercation between them on account of money for flesh since Pruthvi was to recover money for flesh sold to the accused. At this juncture, brother of the accused, namely, Deepak came there and he started assaulting Pruthvi (PW 3) with kick blows. In the meantime, accused Ritesh took out revolver and fired it towards Pruthvi. He has further stated that the brothers of Pruthvi, namely, Rohtaj and Kisan, also came there, and the accused and his brother ran away. Pruthvi received bullet shot on his nose and fell down, and hence, autorickshaw of Sakharam was brought and Pruthvi was removed to Civil Hospital by autorickshaw, and thereafter Police personnel recorded his statement. 14. During cross examination, Digambar (PW 7) has admitted that accused had filed one complaint against him and one Ramsing Tak on the allegations that he assaulted him at his house. 15. As regards topography, he has stated that the lap in (19) front of the house of Pratapsing is on southern side adjacent to the road. Moreover, there is Nali on the northern side of the road and thereafter there is open space and house of the accused, and distance bhetween Nali and house of the accused is about 40 feet. He has also stated that the distance between him and Pruthvi was about 15 feet when Pruthvi gave call to the accused. He has further stated that the incident took place adjacent to