Damodar Gangaram Gaikwad vs The State of Maharashtra

Sadhana S. Jadhav, J.—The applicant herein was convicted for the offence punishable u/s 307 of Indian Penal Code and sentenced to suffer R.I. for five years and to pay fine of Rs. 1,000/- in default, S.I. for one month. He is also convicted for the offence punishable u/s 30 of the Arms Act and sentenced to undergo S.I. for one month and to pay fine of Rs. 100/- in default further S.I. for ten days in Sessions Case No. 238 of 2001 by the Ad-hoc Assistant Sessions Judge, Kolhapur vide judgment and order dated 7th May, 2005. After framing of charge, accused No. 1 had absconded and therefore, the trial against accused No. 2 was separated vide order dated 20.4.2004. Sessions Case No. 238 of 2001 was only tried against accused No. 2.

Being aggrieved by the said judgment and order, the applicant had filed Criminal Appeal No. 55 of 2005 before the Sessions Judge, Kolhapur. The learned Sessions Judge vide judgment and order dated 10.11.2011, has been pleased to dismiss the appeal. Hence, this Revision Application.

Such of the facts necessary for the decision of this Application are as follows:-

That one Parshu Shinde was working as a Police Constable and was attached to Panhala Police Station. Earlier to that he was posted at Shahuwadi Police Station. In the year 1994-95, Parshu Shinde got acquainted with a lady Police constable i.e. Ujwala Zende. The acquaintance had developed into intimacy. In the year 1997-98, Ujwala was transferred to Ajara Police Station and Parshu Shinde was transferred to Panhala Police Station.

When Ujwala was transferred to Central Kolhapur, the present applicant was working as the API and was attached to the Control Room. The applicant herein had also developed intimacy with Ujwala Zende.

Parshu Shinde learnt about the said intimacy and was annoyed with the same. In 1999, Parshu Shinde had purchased a flat from Dilip Moghe in the name of Ujwala since he was having intimate relations with her. Ujwala was residing in the said flat along with her daughter. Parshu Shinde used to visit Ujwala quite often at the said flat and also used to stay with her temporarily. The present applicant had learnt about the intimacy between Parshu Shinde and Ujwala and had threatened Parshu Shinde telephonically as well as at the Police Station. Parshu Shinde had informed about the same to his seniors.

On 2.5.2000, Parshu Shinde was on bandobust duty at Asurle Porle. On that day at 8 p.m. he had reported to the Police Station Panhala. On the said date, he received a message from his wife informing him that his mother was ill and admitted in the hospital of Dr. Arage at Kolhapur. Upon receipt of the said information, the applicant rushed to the hospital. He left his sons at the house of his sister-in-law and then along with his sons had been to Malkar Tikiti for taking meals. At about 10.30 p.m., he had called upon Ujwala and informed her about illness of his mother. Ujwala had offered to meet his mother. She therefore called him to her house. Parshu Shinde had been to the flat of Ujwala. He had seen the accused in the bedroom of Ujwala and upon seeing him he was annoyed. According to the prosecution, Ujwala had pushed Parshu in the bedroom and had exhorted the present applicant to kill him if he has guts. The accused-applicant had questioned the courage of Parshu to visit the house of Ujwala late at night and therefore, he fired at Parshu Shinde from his service revolver. He has sustained bullet injury. Gaikwad was taken to the C.P.R. Hospital, Kolhapur. Jayshree Lavate had informed the police of the said incident and had set the law into motion. P.I. Maruti Chalake, who had received the information, had rushed to C.P.R. Hospital and recorded the statement of injured punishable under Sections 307, 201 read with Section 34 of IPC.

Crime No. 50 of 2000 was registered at Juna Rajwada Police Station against the present applicant and Ujwala Zende for the offence punishable u/s 307 and 201 read with Section 34 of IPC. The investigation was completed and charge-sheet was filed on 26.7.2000 for the offence punishable under Sections 307, 201 read with Section 34 of IPC. By an order dated 2.11.2001, the case was committed to the Court of Sessions and registered as Sessions Case No. 238 of 2001. The accused-applicant was taken into custody on 3.5.2000 i.e. on the date of incident. The accused was in jail from 3.5.2000 to 24.12.2000. Thereafter he absconded and was not available for trial, hence the trial proceeded against accused No. 2.

The prosecution examined 8 witnesses to bring home the guilt of the accused i.e. accused No. 2.

PW-1 is Anand Patil who has acted as a panch for spot panchnama. The spot panchnama is at Ex. 40.

It is elicited in the cross-examination that police had seized pieces of glass from the flat at 2nd floor in Sadbhavana Apartment. The said pieces of glass were not wrapped in paper. It is pertinent to note that the recitals of panchama shows that the bullet was fired at the mirror on the cupboard on the said bedroom. The aluminum door on which the mirror was fixed was also damaged. It is further stated that the flooring of the said bedroom was neatly mopped and that there was no pieces of glass nor there were blood stains in the said room. Hence, there was nothing to indicate that the pieces of glass were seized by the police at the time of panchnama.

PW-2 Parshuram Shinde is the complainant who was injured in the said incident. He was working as Police Constable and was attached to Panhala Police Station. He has deposed before the Court that the accused Ujwala is married and is a mother of two children. He has specifically deposed before the Court that he was acquainted with Ujwala Zhende since 1995. Their acquaintance had developed into a love affair. She was residing in the Lane, Shahuwadi. She is the mother of two kids. He has specifically admitted before the Court that there were complaints about their relationship and therefore Ujwala was transferred to Ajara Police Station and he was transferred to Panhala Police Station. Subsequently Ujwala had got her transfer order cancelled and was transferred to Control Room, Kolhapur. PW-2 was knowing the present applicant as he was an ASI and was attached to the Control Room at Kolhapur. PW-2 had continued to visit accused No. 2 Ujwala at Kolhapur while she was staying with her mother. He had learnt from the police personnel that Ujwala had developed intimacy with ASI Gaikwad. He had also learnt from the newspapers that the accused Nos. 1 and 2 had consumed alcohol at Govind Delux Hotel and had behaved in a disorderly manner. PW-2 has further stated that he had purchased a flat in the name of accused No. 2 by borrowing loan in her name and he had also contributed for the purchase of a flat in Sadbhavana Apartment. Sambhaji Nagar. Thereafter, she had started residing in the said flat. According to him, the present applicant had threatened him of dire consequences by a telephone call. PW-2 had informed to PSI Ramkrishna Bhosle and other police personnel.

In respect of the incident in question, PW-2 had stated that on 2.5.2000, he was on bandobast duty at Asurle Porle Sugar Factory. At about 8.15 p.m., his wife informed him telephonically that his mother is serious and was admitted in the hospital of Dr. Arage. He, therefore, took the motorcycle of P.I. Kumar More and then he left for Waghil along with his sons Amar and Ajinkya. He went to the hospital in a trax. He met his mother in the hospital. He then dropped his son at the place of his sister-in-law Jayshree Lavate. Thereafter along with the driver Warang, he had meals at At about 7.30 p.m., he informed Ujwala about the illness of his mother. She requested him to visit her and take her to meet his mother. He went to the house of accused No. 1 in the trax. He had told the driver that he would return within five minutes. When he went to the flat, accused No. 2 was along with her daughter. She invited him inside the flat and told him that she would change her clothes as she was wearing the evening gown at that time. She then went towards wash-basin which is in the passage by the side of the hall. PW-2 followed her. The door of her bedroom was open. A mattress was laid on the floor and accused No. 1 was standing on the bed. He was wearing a Lungi and banian at that time. PW-2 entered into the bedroom. Accused No. 1 i.e. present applicant had questioned him about his presence in the flat and suddenly accused No. 1 i.e. present applicant shot him. He received the shot of bullet near his stomach. The said bullet passed through two ribs. According to him, the accused No. 2 Ujwala was near the washbasin and had not uttered any words.

It is pertinent to note that the prosecutor had brought to the notice of the Court that the informant had resiled from his earlier statement and, therefore, the Court had permitted the prosecutor to cross-examine PW 2.

In the cross-examination, the witness has stated that he had narrated the entire incident to police. The contents of his report were read over to him. After admitting its contents, he had signed on the said report. He has specifically stated that he was fully conscious while lodging the report. He has denied to have stated in the report that the accused No. 2 had pushed him into the bedroom and had instigated the present applicant to kill him if he has guts. It was stated in the report that the applicant had asked him as to why he had come and thereafter he had fired him. The said portion is marked as portion marked "A".

PW-2 has stated that the original accused No. 1 is absconding since two years. The evidence was recorded on 19.6.2004. During the interregnum, intimacy was developed between accused No. 2 and PW-2. However, he has denied that he had not attributed any role to accused No. 2 at the trial only to exonerate her. He has admitted in the cross-examination that he was annoyed on seeing accused No. 1 in the house of accused No. 2 as there was love affair between him and accused No. 2. He has stated that after firing he shouted and pushed accused No. 1 and ran away from the spot. He has stated in the cross-examination that he had personally not read the contents of the report. According to him, when he went to CPR Hospital, he had disclosed to everybody about the accused No. 1 i.e. the present applicant. He has also admitted that when he went to the hospital, he heard his colleagues saying that the image of the police has been tarnished due to accused No. 2.

It is pertinent to note that after the accused were arrested, they were subjected to medical examination. There was no external injury on the person of the present applicant. The injury certificate of original accused No. 2 shows that she had contusions on the right knee joint red in colour. There was contusion on the right cheek. The injury No. 1 was by hard and blunt object. It was simple in nature and the doctor could not ascertain the cause of injury No. 2.

PW-5 Kanchan Bhore is the neighbour of original accused No. 2 and she was residing in Sadbhavana Apartment. She has deposed before the Court that at the time of incident, she was also residing in the same apartment along with her two daughters. At night, she had heard sound of banging on the door. After some time, the daughter of accused No. 2 i.e. Mona had been to her flat. She was weeping. PW-5 had taken her inside. She made enquiries with Mona. The little girl was frightened and did not disclose anything. PW-5 therefore went to the flat of accused No. 2 and asked her what had happened. There was no reply and after some time original accused No. 2 had given her a packet containing something. The witness has been declared hostile.

In the cross-examination, the witness has admitted that she had stated in her statement before the police that accused No. 2 had given her a bullet to keep. However, she cannot assign any reason why it did not find place in her statement. According to her, she had not opened the packet and was not aware of its contents. She has denied to have concealed the same before the police.

PW-8 Maruti Chalake was attached to Juna Rajwada Police Station as a PSI. He had reduced the complaint of PW-2 into writing.

It is elicited in the cross-examination that before reducing the complaint into writing, he had visited the house of accused No. 2. He stayed there for about 5-10 months. However, at that time, he had not seized any article from the house of accused No. 2. According to him, when he went there, except accused No. 2, there was nobody in the house. He had not arrested accused No. 2 at that time. He has deposed before the Court it is not true to say that informant had not stated the portion marked "A" of the FIR. The portion marked "A" of the FIR is the specific role attributed to accused No. 2. The charge is also framed accordingly. It reveals that she had pushed PW-2 into the bedroom and had told accused No. 1 to kill PW-2 if he has guts and thereafter accused No. 1 had asked PW-2 as to why he had come to her house and then had fired at him.

PW-8 has specifically admitted in the cross-examination that he had recorded the statement of the ladies who were present at the flat, more particularly Vandana Rao. He had not submitted the said statement with the charge sheet. It appears that the said statement would not support the prosecution story and, therefore, it was not submitted along with the charge sheet. PW-8 has also specifically admitted in the cross-examination that it is not recorded in the memorandum Exhibit 17 of accused No. 2 that while collecting pieces of glass, he had found the fired bullet. He has not mentioned in the panchnama that fired bullet was seized. He has also admitted that he had not prepared the memorandum of accused No. 2 and had not sealed the fired bullet in respect of her statement. Be that as it may, the fact that it is admitted that the bullet was shot from the service revolver of the accused No. 1. The contents of the panchnama that the fired bullet was recovered at the instance of accused No. 2 fro the house of PW-5 cannot be ignored. The map of the scene of offence, the revolver, clothes of the complainant, C.A. Report, NLC and the arrest panchnama are admitted by the defence u/s 294 of Cr.P.C.

The accused No. 1/appellant was arrested and taken into custody on 11.7.2004. The case against him was also registered as 238/2001. It was deemed to be continuation of the trial against accused No. 2 in which evidence was recorded.

At the trial of the present applicant, PW-1 Prakash Yadav was examined as a panch witness for recovery of the clothes of the injured complainant. He has admitted in the cross-examination that who he went to the police station, the clothes were already brought.

PW-2 Shahaji Sawant is a panch witness for seizure of the tempo trax bearing No. MH-09-S-5695 which was stained with blood.

PW-3 Ananda Patil is the panch for spot pnchnama. He has deposed before the Court that Kerba Kesha Warang had led them to the flat. The said flat in Sadhbavana was closed. No police personnel was present at the flat before he reached. According to him, police constable had written the panchnama. He has further stated that Vandana Raut had opened the door of the flat but no questions were put to her in his presence. He has specifically stated that there is no passage between hall and bedroom but there is a passage to enter the kitchen and the passage adjacent to the wall of the bedroom. The cupboard was in the hall. They did not find any pieces of broken glass and hence glass pieces were not seized. They did not notice blood stains on the wall of that flat. Nothing was seized from the spot. There was a cupboard in the bedroom and they had noticed that the glass of the cupboard kept in the bedroom was broken. He has admitted the mark of firing of bullet was 6 inch below the upper part of cupboard and the said mark is at the distance of 6 inch from the right side of the cupboard. He has further stated that P.I. Chalke did not inform the panchas the cause of bullet.

In the earlier trial, he had stated that the police had seized pieces of glass from the flat at 2nd floor in Sadhbavana Apartment. The said pieces of glass were not wrapped in paper. Exhibit 40 is the spot panchnama. It is apparent that his evidence in the earlier trial is at variance with his evidence in the subsequent trial. Hence, it cannot be held that his testimony is of a sterling nature which would inspire confidence. It is unfortunate that the said witness was not confronted with his deposition in the trial against original accused No. 2.

PW-4 is the injured complainant. His evidence in the subsequent trial against the present applicant is at variance from the evidence which was recorded in the trial against original accused No. 2. The witness was confronted with the first information report in the earlier trial and he has categorically denied to have stated that accused No. 2 had pushed him in the bedroom and then instigated the accused No. 1 to kill him if he has guts. It is the core of the allegations. The peripheral aspect is the actual act committed by the original accused No. 1 i.e. the present applicant. He had been declared hostile in the earlier trial and the same is admitted by him in the subsequent trial. Both the depositions are on oath. Upon perusal of the record, it is clear that in the earlier trial, he had resiled from the contents of the FIR lodged by him and hence it was an uncorroborated testimony. In the subsequent trial, also he has resiled from the contents of the FIR and hence it is once again an uncorroborated testimony. Although the principal act is attributed to the present applicant, the question remains as to whether implicit reliance could be placed upon the deposition of such a witness. He has specifically admitted that he wanted Ujwala Zhende to sever her relations with accused-applicant and discuss about it with Ujwala. However, the relations had continued. This admission by itself would give reason for Ujwala to instigate the accused No. 1 to assault PW-4. In any case, although Ujwala was not a principal offender, she was liable for conviction u/s 201 of IPC as she had attempted to screen the offender. She had handed over the bullet to her neighbour and the same was recovered at her instance from the cupboard. If the contents of FIR are to be considered she would also be liable for conviction u/s 109 of IPC.

It is pertinent to note that PW-4 has admitted in the cross-examination that the Court had issued notice to him for resiling from his earlier statement at the trial against Ujawala. He has admitted in the cross-examination that the entry to the bedroom is from the passage. One basin is in the said passage and the bedroom starts at the distance of 3 to 4 feet from the basin. The cupboard is to the left of the entrance of bedroom. All these suggestions were put to the witness to substantiate that the complainant had entered into the bedroom from the passage where it is alleged that Ujawala was washing her face. He has further admitted that when Ujawala was washing her face at wash-basin, he crossed her and went ahead. He has also admitted that the accused and then bed was visible from the passage. According to him, when he was in the passage, the accused was found in the bedroom and he was standing at a distance of 3 to 3-1/2 feet from the entrance door of bedroom. It is pertinent to note that he has specifically admitted that he saw the accused only standing and had not seen him holding a revolver. His answer to the suggestion is at follows:

Initially I saw the accused not only standing in bedroom but I cannot tell at that time he was holding revolver or not. I cannot tell at the time of firing from where the accused had taken revolver. On seeing me the accused did not rush towards me. The accused pointing the hand straight towards me and open the fire. The accused only told me that whey you have come here except that no talk between me and accused. Ujwala Zhende did not try to rescue us. He has further admitted as follows:- "I do not know the uniform and service revolver of the accused was hanged there" (passage). The witness has given evasive answers to the specific suggestions given by the defence.

It is pertinent to note that PW-6 Namdev Parit is a panch for recovery of bullet. According to him, when they went to flat No. 2 of ground floor of Sadbhavana Apartment, Ujwala Zende called upon Bhore. One lady opened the door and Ujawala Zende asked that lady to give bullet which she had given to her in the night of day before yesterday. That lady produced the bullet which was kept in tin. It is pertinent to note that this witness is declared hostile at the earlier trial.

PW-10 is Janaba Sawant. He has deposed before the Court that he was working as Manager in Hotel Maharaja and on the date of incident, he was on duty. At about 11 p.m., the police officer Damodar Gaikwad had come to the hotel on uniform without cap. At his request, a single room was given to him bearing Room No. 206. There is no entry to that effect in the register since he was acquainted with the Hotel Manager. After about 1� hour, a lady made a phone call and was enquiring about Gaikwad. Thereafter, the police had come to the hotel and had taken Gaikwad into custody.

It is elicited in the cross-examination that on that day the police had not checked the register of the Hotel. His statement was also not recorded on that night. There are inherent omissions and contradictions in the deposition of this witness. He has admitted in the cross-examination that on that day, the police had not seized the revolver from the accused i.e. the present applicant. The said portion is marked "A", but it would amount to an omission amounting to contradiction.

PW-11 Dr. Zunzarrao Patil had examined the injured complainant on 3.5.2010, he had also examined Ujawala Zhende at about 5.15 a.m. She had a contusion on the right knee joint red in colour and a condition on right cheek. The qualification of the said witness is B.A.M.S. He had not given the exact location of injury on Parshuram Shinde. The first page of the case papers at Exhibit 123 is not in his handwriting. He was only present at the time of admission of the patient. According to him, nothing abnormal was detected in the X-ray. There was only a surface wound and no internal injuries. He has specifically stated that the exit would is 2 inch above the entry wound and it is oblique in nature. At the time of admission, the patient was normal. There is nothing to indicate that the patient was admitted by Bandu Gaikwad. The deposition of material witness is at variance.

PW-12 Ashok Jadhav was working as a driver. He was called as a panch for the arrest panchnama of the present applicant. According to him, he was called at Hotel Maharaja. The revolver was recovered at the instance of the accused from below the cot. He has further deposed that the accused had kept the bullets in his shirt which was wrapped in a paper and there were six bullets in it out of which one bullet was an used bullet. There was a number on the said bullet. The revolver and the bullet were seized.

PW-13 is Kanchan Bhore. She has deposed before the Court that on the day of incident, initially the daughter of accused No. 2 had come home and at that time she was crying. She was in a frightened condition and thereafter the accused No. 2 had given her a pocket containing a bullet and had asked her to keep it with her. It is pertinent to note that in the trial against original accused No. 2, the said witness was declared hostile. On the same set of evidence, she has not been declared hostile in the present case. According to Kanchan Bhore, Ujwala had come to her house and had given her a packet containing bullet. This has to be read in consonance with the fact that according to the injured complainant, after the incident, he had pushed accused No. 2 in the bedroom and had latched the door from outside.

In the present case against the accused No. 1, PW-4 Parshuram Shinde has stated that he had sustained grievous injuries. That the bullet had found exit through left ribs. Thereafter, he pushed the accused No. 1. Ujwala Zhende had intervened. Therefore, he had pushed her in the bedroom and latched the door from outside. If this aspect of the evidence is to be believed, it will be clear that if the door was latched by the complainant from outside, Ujawala could not have gone to the house of Kanchan Bhore. The panchnama of recovery of the bullet shows that it was recovered from the house of Kanchan Bhore. Hence, the evidence of PW-4 does not inspire confidence.

PW-14 Jayashri Lavate has deposed that at about 11 to 11.15 p.m. on that day the injured had come in front of her house in a trax and she shouted that he should be saved from Gaikwad. There are inherent inconsistencies in her evidence.

PW-15 Mahesh Sawant has deposed that he had received an information that the accused was in Hotel Maharaja. He arrested the original accused No. 1 i.e. the present applicant along with revolver and five bullets from Hotel Maharaja. He has admitted in the cross-examination that he had not taken the finger prints of the present applicant.

PW-16 Baban Jadhav is a head constable. According to him, on 3.5.2000 at about 2.45 a.m. the accused was brought in the police station. He had not taken entry into the station diary about the production of the accused. It is pertinent to note that according to him, P.I. Chaklke was in the police station when the accused was produced.

PW-17 is the carrier of muddemal property.

PW-18 is Maruti Chalke, who was attached to Junarajwada Police Station as P.I. He had recorded the statement of the injured complainant in the hospital. Initially, Doctor had informed him that the patient is not in a position to give his statement. He had therefore proceeded with the investigation. Upon enquiry, Ujawala Zhende had not given any proper explanation. He has deposed in respect of the statement of Ujawala Zhende wherein she has disclosed that she had kept the packet belonging to the accused No. 1 in the storage of the cot. The memorandum is at Exhibit 107 and the recovery panchnama is at Exhibit 108. He has also suppressed the genesis that at the behest of accused Ujawala, the bullet was recovered from the house of Kanchan Bhore. The panchnama is at Exhibit 111, he has given evasive answers in the cross-examination. He has admitted that he had not recorded the statement of Mona daughter of Ujawala Zhende who, in all probabilities, was the best eyewitness. It is unfortunate that PW-18 was not confronted with the omissions and contradiction of the injured complainant although he was confronted with 161 statement of PW-7 Kerba Waning and PW-10 Janaba Sawant.

Upon perusal of the evidence adduced by the prosecution, it is amply clear that all the witnesses who have been declared hostile at the trial of original accused No. 2 have been relied upon by the learned Sessions Judge in the subsequent trial. The credibility of the said witnesses was doubtful. It cannot be said that the evidence of the injured was a sterling testimony. He was declared hostile at the trial of original accused No. 2. It is apparent that there was suppression of genesis of the crime which goes to the root of the matter and, therefore, the present applicant is entitled to benefit of doubt.

It is further pertinent to note that original accused No. 2 has not been convicted for offence punishable u/s 201 of IPC or Section 307 read with Section 109 of IPC and, therefore, the benefit needs to be extended to the present applicant. It is unfortunate that the prosecution has not filed an appeal against acquittal challenging the acquittal of the original accused No. 2.

The learned APP submits that the present applicant had absconded after framing of charge and, therefore, he deserves to be convicted. This Court is not impressed with the said submission since by no stretch of imagination it could be a ground to convict a person for an offence punishable u/s 307 of IPC. Moreover, the prosecution has not adduced any evidence to establish the abscondence of the accused.

For all the abovementioned reasons, the applicant is entitled to benefit of doubt. The applicant is hereby acquitted of all the charges levelled against him by extending to him the benefit of doubt. The judgment and order passed by 3rd Ad hoc Asstt. Sessions Judge, Kolhapur dated 7.5.2005 in Sessions Case No. 238 of 2001 is hereby quashed and set aside. The applicant be released forthwith, if not required in any other offence.