1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 847 OF 2003 Dhula Hira Kolekar ) Constable B. No. 1163 ) (suspended) Pandharpur, ) Town Police Station, Pandharpur ) (At present lodged in Yerwada ) Central Prison, Pune. ) .. APPELLANT Versus THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. M. M. Najmi, Advocate appointed for the appellant Mr. V. B. Konde Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 31st March, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:- 23rd APRIL, 2010 JUDGMENT:-(Per Smt. Ranjana Desai, J.) The appellant was tried by the court of II Additional 2 Sessions Judge at Pandharpur in Sessions Case No. 83 of 2002 for offences punishable under Sections 302, 307, 506 of the Indian Penal Code (“IPC”) and under Section 27 (1) read with Section 5 of the Arms Act, 1959. He was inter alia charged for having committed murder of PI Danve and API Shinde By the impugned judgment and order the appellant is convicted for offences punishable under Sections 302 and 307 of the IPC. In respect of murder of API Shinde, the appellant is convicted under Section 302 of the IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.1000/-, in default to suffer further RI for two months. For attempting to commit murder of PI Rasal, the appellant is convicted under Section 307 of the IPC and sentenced to suffer RI for seven years and to pay a fine of Rs.1000/-, in default to suffer further R.I. for two months. For attempting to commit murder of Deputy Superintendent of Police PW 3 Gamne, the appellant is sentenced to suffer RI for seven years and to pay a fine of Rs.1000/-, in default to suffer further RI for two months. The appellant is acquitted of the offence punishable under Section 307 of the IPC the allegation being that he attempted to commit murder of PHC PW 5 Chandrakant Kumbhar. The appellant is also acquitted of the offence punishable under Section 506 of the IPC and under Section 27(1) read with Section 5(a) of the Arms Act. Being aggrieved by the said judgment and order the appellant has 3 filed this appeal. 2. It is necessary to begin with the facts of the case. They are as under: a) There are two police stations in Pandharpur, Pandarpur Town Police Station and Pandharpur Taluka Police Station. There is about half a kilometer distance between the two. PW 1 PI Ravindra Rasal was attached to Pandharpur Town Police Station. API Shinde was attached to Pandharpur Taluka Police Station. PW 3 Dy. S.P. Radhakrishna Gamne was the Sub-Divisional Police Officer (SDPO) of Pandharpur. Both the police stations were within his jurisdiction. The police complex and Pandharpur Town Police Station are separated by a south north public main road. These facts are not disputed. b) The appellant was attached to Pandharpur Town Police Station as a Police Constable bearing Buckle No. 1163. The appellant had a grievance that though his leave had been sanctioned PI Danve had not relieved him to enjoy that leave. The appellant wanted a posting in Detection Branch or Traffic Branch, however, PI Danve had not posted him there. PW 3 Dy. S P Gamne had visited the sub-jail on 4 the night between 4/5/02 and 5/5/02. At that time he found the appellant in plain clothes. He, therefore, imposed punishment of extra drill for three days on the appellant. The appellant was, therefore, annoyed. c) On 10/5/2002 the appellant was posted as a Sub-Treasury guard and for that purpose PW 16 PC Govardhan Dongre handed over 0.303 rifle to him.. On that day at about 8-45 p.m. the appellant visited the residence of PI Danve but PI Danve was not present. PW 2 Sandhya Danve wife of PI Danve was present. The appellant asked her whether PI Danve was present in the house. She replied in the negative. PW 3 Dy. S.P. Gamne and PI Danve were sitting on two separate chairs near porch of Muktai Building situate in the police complex. PW 1 PI Rasal was called there. d) At about 9-15 p.m. the appellant came near the gate of the police complex on a motor cycle. He parked his motor cycle there. Armed with rifle he entered the gate of the police complex. He approached the three police officers sitting there. He greeted them with ‘Namaskar Saheb’ and suddenly opened fire at PI Danve. PI Danve sustained gun shot injury on his left cheek. The bullet went out from near left ear. The appellant then immediately fired the 5 second shot from the rifle towards PW 1 PI Rasal. PI Rasal could evade the shot by running away. The appellant again fired at PI Rasal. PI Rasal succeeded in evading that shot also but the bullet struck to the wall of the Muktai building and returned to PI Rasal. Its pieces struck to his right arm thereby causing injuries to him. The appellant again fired a shot at PI Rasal. PI Rasal evaded the shot. PI Rasal succeeded in making his escape good. He entered Muktai building and waited at the back of Muktai building. Thereafter the appellant fired a shot at PW 3 Dy. S.P. Gamne, which struck him on his back but above the waist. PW 3 Dy. S.P. Gamne sustained injuries and became unconscious. e) Thereafter the appellant went to Pandharpur Town Police Station. API Shinde was sitting in the room of Police Station Officer . PW 5 PHC Chandrakant Kumbhar was standing near him and PW 7 PSI Uttam Bhosale was sitting on a bench. The appellant armed with rifle entered the police station. He fired the shot from rifle at API Shinde. The bullet struck on API Shinde’s chest. API Shinde was seriously wounded. The same bullet struck on the left upper thigh and abdomen of PW 5 PHC Kumbhar who was standing near API Shinde. On hearing the sound of firing PW 6 PHC Mukund Nalavade turned back and witnessed the appellant at the door of the room of 6 police station officer. He along with PC Chavan and PC Mali approached the appellant and caught him. PW 6 PHC Nalavade succeeded in snatching the rifle from the appellant. In the meantime PW 1 PI Rasal had given a message to Pandharpur Taluka Police Station about the incident. PW 8 PHC Ashok Korke who was on duty at the police station as police station officer recorded a message. The appellant was taken to Pandharpur Town Police Station. f) API Shinde and PW 3 Dy. S P Gamne were taken to the hospital of PW 13 Dr. Raka. PW 5 PHC Chandrakant Kumbhar also came there. They were sent to Ashwini Hospital. On way to Solapur API Shinde died of the gun shot injury. PW 3 Gamne and PW 5 Kumbhar were admitted in the Ashwini Hospital. The body of PI Danve was sent to Pandharpur Municipal Hospital. PW 12 Dr. Joshi examined him and declared him dead. g) On the same night PW 1 PI Rasal lodged report Exh.-18 with Pandharpur Town Police Station. C.R. No. 131/2002 came to be registered under Section 302 and 307 of the IPC against the appellant. Investigation was set into motion. After completion of the investigation the appellant came to be charged as aforesaid. 7 3. In support of its case the prosecution examined as many as 17 witnesses. The star witnesses of the prosecution are PW 1 PI Rasal, the first informant and PW 3 Dy. S P Gamne who were injured in the first firing incident and PW 5 PHC Kumbhar, who was injured in the second firing incident and PW 7 PHC Uttam Bhosale who is eyewitness to the second firing incident. 4. The defence of the appellant was one of denial. According to him an unidentified assailant opened fire at PI Danve and API Shinde. That assailant attempted to commit murders of PW 3 Dy S P Gamne, PW 1 PI Rasal and PW 5 PHC Kumbhar. According to the appellant as he had voiced his grievances against the police officers he came to be falsely prosecuted by the police. According to him he was made a scapegoat. The appellant also pleaded defence of insanity. After perusing the evidence on record, learned Sessions Judge convicted the appellant as aforesaid and hence this appeal. 5. We have heard at some length Mr. Najmi, learned counsel for the appellant and learned APP. With the help of learned counsel, we have gone through the evidence and the record of the case. 8 6. Mr. Najmi, learned counsel for the appellant submitted that investigation of the case ought to have been carried out by an independent agency. It is carried out by the same police station to which the officers who were injured and the officers who died in the incident were attached. The investigation is, therefore, a biased investigation. Counsel drew our attention to the evidence of PW 15 Dy. S. P. Dr. Pathare, who investigated the case. Counsel pointed out that PW 15 has stated in his evidence that the investigation of the case was ordered to be conducted by CBI. However, immediately thereafter there was a direction to him to proceed with the investigation. Counsel submitted that there is no explanation as to why the direction was changed and the same police station was permitted to conduct the investigation. He submitted that the entire investigation is conducted malafide and the appellant has been falsely involved because he tried to voice his grievance against the police officers. 7. Counsel further submitted that the appellant was carrying a service rifle. When the alleged offence was committed, he was on duty. Assuming that the appellant had fired as alleged, firing was done in discharge of his duties and, therefore, it was necessary for the prosecution to obtain sanction under Section 197 of the Code of 9 Criminal Procedure (“the Code”). Since the sanction is not obtained, the prosecution is vitiated. 8. Counsel submitted that there is variance between the versions of the prosecution witnesses as to how, when and where the appellant was arrested. While PW 1 PI Rasal has stated that the appellant was arrested by him and PC Bharat Jadhav outside the office of the police complex, PW 5 PC Kumbhar has stated that after bullet was fired at API Shinde, he shouted that the appellant should be nabbed. PC Mali caught the appellant from behind and PC Nalavade who was in the vicinity went running and pointed the barrel of the rifle. PC Chavan took out the magazine from the rifle. Then PC Nalavade snatched the rifle from the accused. Counsel submitted that the appellant cannot be arrested by two persons at two different places on two occasions. According to him this variance casts a shadow of doubt on the prosecution case. 9. Counsel submitted that in case this court is not inclined to set aside the order of conviction and sentence, this court may direct that the substantive sentences imposed on the appellant shall run concurrently. In this connection he relied on judgment of the Supreme Court in Ranjit Singh v. Union Territory of Chandigarh & 10 Anr., AIR 1991 SC 2296 and judgment of Madhya Pradesh High Court in Johrilal & Anr., v. The State of Madhya Pradesh, AIR 1971 MP 116. 10. Learned APP on the other hand submitted that no case is made out for interference with the impugned order. He submitted that the prosecution has examined injured eye-witnesses who have clearly deposed as to how the appellant opened fire at PI Danve and API Shinde and injured other police persons. Learned APP submitted that the attack made by the appellant is so brutal that he does not deserve any sympathy. This is not a case where substantive sentences should be ordered to run concurrently. Learned APP submitted that whether to order substantive sentences to run concurrently or not is entirely the discretion of the court. This is not a case where this court should exercise its discretionary power in favour of the appellant. Learned APP submitted that the appeal be dismissed. 11. Postmortem notes of PI Danve are at Exh.-46 and Postmortem Notes of API Shinde are at Exh.-48. Both the documents have been exhibited by consent of the parties under section 294 of the Code. Cause of death of PI Danve is stated to be “due to shock due to 11 lacerations of brain and fracture skull and intracranial haemorrhage due to gun shot injury”. Cause of death of API Shinde is stated to be “shock and haemorrhage due to injury to vital organs caused due to firearm”. Medical evidence and eyewitness account indicates that the injuries suffered by both the deceased were ante mortem. It is not disputed and it cannot be disputed that the death of PI Danve and API Shinde was homicidal and injuries suffered by them were due to use of firearm. 12. PW 16 PC Govardhan Dongre was at the relevant time attached to Pandharpur Police Station. On 9/5/02 he was on duty at Pandharpur lock-up guard in Pandharpur Town Police Station. According to him at about 9.00 a.m., the appellant came to him and informed him that his duty was at Sub Treasury, Pandharpur. He asked for a rifle and ten cartridges. As per direction of ASI Pawar he handed over point 303 rifle having butt No. 318 and two clips each having five cartridges to the appellant and made him make an entry in the relevant register and sign alongside the entry. PW 16 has produced the relevant entry which is at Exh. 70. When rifle Art. 37 was shown to him he stated that it is the same rifle which he had handed over to the appellant. PW 7 PHC Uttam Bhosale was attached to Pandharpur Town Police Station. He was on duty as 12 Police Station Officer since 8 p.m. on 10/5/02 to 8 a.m. on 11/5/02. He stated in his evidence that PHC Nalawade took roll call in the presence of API Shinde. When API Shinde was taking entry in station diary the appellant came there and fired a shot with a rifle at API Shinde. The appellant also fired at PW 5 PHC Kumbhar. PC Mali caught the appellant from behind. PHC Nalavade and PC Chavan snatched the rifle from the appellant. PW 10 Balasaheb Gaikwad is a pancha to the panchnama Exh.-39 under which rifle Art. 37 was taken charge of and the appellant was arrested. PW 10 stated that Panchnama Exh.-39 was conducted on 11/5/02 at about 2.00 a.m. at the Pandharpur Town Police Station. He stated that PW 5 PHC Bhosale produced a man who came to be arrested. A rifle was taken charge of. When Art. 37 was shown to him he stated that it is the same rifle. It is pertinent to note that in the panchnama the rifle is described as having butt number 318 which number tallies with the number of rifle mentioned by PW 16 PC Govardhan Dongre who had handed over the said rifle to the appellant on 9/5/02 at about 9 a.m. 13. The prosecution has successfully proved the motive. Injured witness PW 1 PI Rasal stated that on 8/5/02 the appellant had visited his office and asked him to recommend his name to PI Danve for the 13 post in Traffic Branch or Detection Branch. PI Rasal told him that he would not recommend him. He asked the appellant to approach PI Danve directly. PW 3 Dy. S P Gamne who was also injured because of the appellant’s firing stated that since the appellant was in plain clothes while on duty, he called him in his office on 6/5/02 and asked for explanation. As the explanation was not proper, he inflicted punishment of extra drill on him for three days. On the same day the appellant asked PW 3 Dy. S P Gamne why he was not posted in Traffic Branch. PW 3 told him that there was direction of Police Superintendent Solapur not to post constables who had already worked in the Traffic Branch again in the Traffic Branch. The appellant stated that it was not proper on PW 3’s part not to post him in the Traffic Branch. PW 4 PHC Potnis deposed that the appellant’s grievance was that API Shinde was favouring his employees and showing him absent. PW 4 stated that the appellant told him that he would take revenge. PW 4 also stated that the appellant had asked him to recommend his name to PI Danve for the post in Detection Branch. All this indicates that the appellant was unhappy with PI Danve, API Shinde and Dy. S P Gamne. He was generally dissatisfied and wanted to take revenge. The prosecution has proved motive. 14 14. It is now necessary to go to the actual incidents of firing. The appellant fired at two places. The first incident took place in the compound of police complex and the second incident took place inside the Pandharpur Town Police Station. PW 1 PI Rasal is eyewitness to the firing which took place in the police complex. He had suffered injuries. PW 12 Dr. Joshi examined him on 10/5/2003 at 10.30 p.m. He issued certificate Exh.-45 stating that the injuries suffered by PW 1 could be caused by fire-arm. PW 1 has given a graphic description as to how the appellant entered the complex where PI Danve and Dy. S P Gamne were sitting along with him, armed with a rifle. PW 1 has given the sequence of events as to how the appellant fired at PI Danve and then fired at him repeatedly. PW 1 has stated how he got injured and how he ran inside Muktai building. PW 3 Dy. S P Gamne has corroborated PW 1 PI Rasal. He has also deposed that the appellant fired at PI Danve, then at PI Rasal and thereafter at him. PW 3 has stated that the bullet struck on his back but above the waist and he became unconscious. He was admitted in Ashwini Hospital. Medical Certificate Exh.-49 issued by Ashwini Hospital indicates that he had received grievous hurt which could be caused by firearm. Evidence of PW 1 PI Rasal and PW 3 Dy. S P Gamne conclusively proves the first incident which had taken place at the police complex. 15 15. It is now necessary to turn to the second incident which occurred in the Pandharpur Town Police Station. PW 5 PHC Chandrakant Kumbhar and PW 7 PHC Uttam Bhosale are the eyewitnesses to the second incident. PW 6 PHC Mukund Nalawade has also deposed about this incident. We have already referred to the evidence of PW 5 PHC Kumbhar. He has stated that on 10/5/2002 at about 9 p.m. the appellant entered the police station officer’s room and fired at API Shinde. According to this witness the bullet which was fired at API Shinde struck on his left upper thigh and abdomen causing injuries. He has then stated how the appellant was arrested. Exh.-50 is the medical certificate issued by the Ashwini Hospital where this witness was admitted. The certificate indicates that the injuries received by him were caused by a firearm. 16. PW 7 PHC Bhosale was at the Pandharpur Town Police Station at the relevant time. He has also stated that the appellant fired at API Shinde due to which API Shinde collapsed. Evidence of these witnesses proves the second incident of firing. It must be stated that all the eyewitnesses have been cross-examined at length by the defence. But they have not deviated from their story. PW 6 Mukund Nalawade was not inside the room when the firing took place. His evidence indicates that he was going out of the room and at that time 16 he heard sound of firing. He saw the appellant in plain clothes with a rifle in his hands. Though he cannot be said to have witnessed the actual firing his seeing the appellant with a rifle soon after the incident is relevant. According to PW 6 Nalawade, PC Mali caught the appellant at his waist. Then he went running to the appellant and caught the rifle held by the appellant. The appellant did not release the rifle but threatened to kill PW 6. By that time PC Chavan came there. PW 6 has given details as to how he ensured that cartridge from the rifle is removed and how the appellant was disarmed. PW 6’s evidence lends corroboration to the evidence of PW 5 PHC Kumbhar and PW 7 PHC Bhosale. 17. Reference must also be made to the evidence of PW 17 Nandkumar Rokade, the Ballistic Expert. He examined rifle Art. 37 along with bullets and pieces of bullets found at the scene of occurrence and removed from the bodies of the injured and the deceased and opined that the bullets and pieces of bullets were fired from the same rifle. The opinions of the Ballistic Expert are on record. 18. Learned Judge has acquitted the appellant of the offence under Section 307 of the IPC for attempting to commit murder of PW 5 PHC 17 Kumbhar because according to him the appellant did not aim at PW 5 and PW 5 received injuries accidentally. State of Maharashtra has not appealed against this acquittal order. It is, therefore, not necessary for us to delve on this point. 19. It appears that the appellant had raised the plea of insanity. However, the appellant produced no medical evidence about his alleged insanity. During investigation no grievance was made that he was insane. There is no evidence on record to establish that prior to the incident, at the time of incident or after the incident the appellant was insane. His conduct of going near the office of police complex after the rifle was snatched from him by itself is not sufficient to prove insanity. The appellant’s desire that he should be posted in Traffic Branch or Detection Branch, his approaching relevant people for it are not signs of insanity. He bore a grudge against prosecution witnesses for not posting him to the department of his liking. PW 6 PHC Nalawade has stated how the appellant resisted handing over rifle. The appellant never acted as a man who had no motivation or no insight. We concur with the trial court that the appellant has not proved the defence of insanity. He has not even created a reasonable doubt in the mind of the court that he was insane when he committed the offence. (C Dayabhai Thakkar v. State of Gujarat 18 (AIR 1964 SC 1563). 20. It is also pertinent to note that when the incriminating circumstances of such grave nature were put to the appellant he offered no explanation about them. His non-explanation supplies the missing link in the chain of circumstances alleged against him (Ganesh Lal v. State of Rajasthan 2002 SCC Cri. 247). 21. In the ultimate analysis, we are of the opinion, that the prosecution has proved its case beyond reasonable doubt. Chain of circumstances is complete and it points unerringly to the guilt of the appellant. The circumstantial evidence is not only consistent with the guilt of the appellant but it is inconsistent with his innocence. The prosecution case rests on injured eyewitnesses. Their presence cannot be disputed. There was no reason for the high placed police officers to falsely involve the appellant. No such case is made out. 22. It was urged by the counsel for the appellant that independent agency like CBI should have investigated this case and because the same police station to which the deceased and the injured witnesses were attached investigated the case it is a biased investigation. We find no trace of biased investigation. At the cost of repetition, we 19 must