High Court

Legal Reasoning

-1- Cri.Appeal.132.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 132 OF 2004 Shivaji S/o. Manoharrao Munde, Age : 32 years, Occu. : Agri., R/o. Mandekhel, Tq. Parali – Vaijanath, Dist. Beed. … Appellant(Orig. Accused No.2.)VersusThe State of Maharashtra… RespondentWITH CRIMINAL APPEAL NO. 206 OF 2004Sunil Shrirang Phad, Age : 29 years, Occu. : Agri., R/o. Parli Vaijnath, Dist. Beed.… Appellant VersusThe State of Maharashtra… Respondent…Mr. R. N. Dhorde, Senior Counsel a/w Mr. S. P. Nimbalkar i/b. Mr. V. R. Dhorde, Advocates for Appellants. Mrs. Uma S. Bhosale, APP for Respondent -State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 15 JULY, 2024PRONOUNCED ON : 23 JULY, 2024JUDGMENT : 1.Both above appeals are offshoots of common judgmentand order of conviction passed by Ist Ad-hoc Additional SessionsJudge, Ambajogai, dated 21.02.2004 in Sessions Case No.80 of -2- Cri.Appeal.132.20042001, recording guilt of the appellants for commission of offenceunder section 160 of Indian Penal Code (IPC) and section 27(2) ofthe Arms Act, 1959.IN BRIEF CASE OF PROSECUTION IN TRIAL COURT2.On 12.06.1995, between 15:00 to 16:00 hours, bothaccused, who were members of unlawful assembly, getting armedwith knives, committed affray in a public place by disturbing publicpeace and injuring each other and also a police personnel andthereby committed offence of 143, 147, 148, 353, 333 r/w 149,326 r/w 149 and 160 of IPC and offence under section 27(1) ofArms Act, 1959.3.After investigation and gathering evidence, bothaccused were made to face trial before learned First Ad-hocAdditional Sessions Judge, Ambajogai, i.e. in which they pleadednot guilty. At trial, prosecution adduced evidence of in all 8witnesses. Defence denied to lead any evidence. After analyzingand after appreciating the evidence, learned trial Judge acquittedboth accused for all the offences except for offence punishableunder section 160 of IPC and 27(2) of Arms Act. Judgment to thatextent is now subject matter of both the appeals. -3- Cri.Appeal.132.2004 As both appeals are heard together, and are answeredby learned APP and as both appeals are arising out of commonjudgment, are dealt and decided by way of common judgment.EVIDENCE ON RECORD BEFORE TRIAL COURT4.PW1 Subhash, pancha to spot panchanama did notsupport the prosecution. PW2 Sherkhan, pancha to memorandum of disclosureand recovery, did not support the prosecution. PW3 Laxman, pancha to memorandum and seizurepanchanama, did not support the prosecution. PW4 Sunil, pancha to spot panchanama, did not supportthe prosecution. PW5 Vithal, Police Head Constable testified that, on12.06.1995, he was on duty at polling station at Zilha Parishadpremises. Around 3:30 to 4:00 p.m., there was quarrel betweenboth the accused in front of Jagdish Sweet Mart. He claims that,there was a mob of 30 to 40 persons. He tried to intervene. Bothaccused had knives in their hands. Somebody assaulted him onhip. He was taken to hospital, where his statement was recorded. PW6 PSI Sangram Sangle is the Investigating Officer,who conducted investigation and filed charge-sheet. -4- Cri.Appeal.132.2004 PW7 Haribhau, another constable stated that, onreceipt of call about mob gathering, he and other police officialsreached there, saw accused no.2 lying in injured condition.Constable Mokashe to be present there and he had sufferedbleeding to the right buttock. He shifted him to the hospital. PW8 Dr. Balasaheb Arasulkar, Medical Officer, whoexamine PW5 Vithal and issued injury certificate at Exh.17. SUBMISSIONSOn behalf of Appellants : - 5.Learned Senior Counsel Mr. R. N. Dhorde, at the outsettook a strong objection to the conviction recorded by learned trialJudge for offence under section 27(2) of Arms Act, as according tohim, such charge was never framed or explained to the accusedand therefore, recording guilt for the same is the patent perversityon the part of learned trial Court. On this count, he invitedattention of this court to charge at Exh.23 and then took this courtthrough the operative part of the impugned judgment and furthersubmitted that without affording any opportunity to answer chargeunder section 27(2) of Arms Act, conviction has been recorded bylearned trial court, as such, serious prejudice has been caused tothe appellants. -5- Cri.Appeal.132.20046.He next submitted that, out of 8 witnesses excepttestimony of PW5 Vithal and PW7 Haribhau, who are policepersonnel, none of the other prosecution witnesses have supportedprosecution version. He pointed out that, even evidence of PW5Vithal and PW7 Haribhau is not full proof, trustworthy andreliable. He raised serious objection in the prosecution version fornot proving very scene of occurrence. Apart from pointing out thatspot pancha did not support, he would submit that, in FIR, spot isshown to be inside the sweet shop, but in substantive evidencewitnesses are naming the spot to be outside and below the stairs.He hastened to add that, in cases of charge of affray, at the outset,it is incumbent upon prosecution to demonstrate that the incidenthad taken place in a public place. According to him, going by thecontents of FIR regarding occurrence taking place inside the shop,it is his submission that, then obviously it is a private place andhence offence of affray cannot be said to be made out. He pointedout that, further prosecution also did not demonstrate that therewas disturbance of public peace and tranquility, which according tohim, is also a sine qua non for recording guilt of affray.7.He next submitted that, even when prosecutionwitnesses, who claimed to be present, states about existence of mobof 30 to 40 persons, but there is no independent evidence. He -6- Cri.Appeal.132.2004pointed out that, not only the sweet shop owner who was bestwitness, no other member of public was examined by prosecutionto establish its case. Consequently, he would submit that, here,there was no convincing or legally acceptable evidence apart fromessential ingredients for attracting the charge to be patentlymissing. 8.Learned counsel took this court through the testimonyof PW5 Vithal and PW7 Haribhau and would submit that, there areallegations that both accused armed with knives, but only one isseized. He further pointed out that, one police personnel admitsthat, there was no knife at the spot. He further pointed out that,pancha to memorandum of disclosure and seizure, have notsupported and interestingly even said recovery of single knife isfrom a open space and accessible to all. For such reasons, hequestions the recovery part also.9.He further pointed out that, case of prosecution is that,accused no. 2 has also suffered injury and was shifted to hospital,but even he is not examined by prosecution in spite of being injuredwitness. Thus, according to learned counsel, there are seriouslapses on the part of investigating machinery. -7- Cri.Appeal.132.200410.Taking this court through the impugned judgment,learned Senior Counsel pointed out that, there is apparentlyimproper appreciation of evidence and non consideration of legalrequirements. He pointed out that, out of 8 charges, there isacquittal for offence under sections 143, 147, 148, 353 r/w 149,333 r/w 149, 326 r/w 149 of IPC. Learned Senior Counselexpressed serious reservations and objections to the findings oftrial court about charge being made out for 160 of IPC, whenaccording to him, learned trial court itself had held that rioting hasnot been proved. Thus, according to him, when trial court did notaccept the case of prosecution, for above charges, conviction foroffence under sections 160 of IPC and 27(2) of Arms Act, was itselfnot sustainable. He pointed out that, even charge of 149 of IPC hasbeen accepted by learned trial Judge. 11.Under such circumstances, he questions furtherfindings of trial court. Learned Senior Counsel took this courtthrough the findings and observations of trial court in paragraphnos. 15, 16, 17, 18, 20 and 22 and according to him, if such are theobservations and findings, then how conviction for 160 of IPCwould at all be held to be made out. 12.As regards to conviction for offence under section -8- Cri.Appeal.132.200427(2) of Arms Act is concerned, he submitted that, even if case ofprosecution about recovery of knife is believed, without admittingthe credibility of recovery, he pointed out that, the articles seizedis not demonstrated and substantiated to be falling on the categoryof arms spelt out in the rules framed under Arms Act. Therefore,for such count also, he criticizes the impugned judgment underchallenge, branding it to be not sustainable in the eyes of law.Lastly, he pointed out that, appellant is now gripped with seriousailments. For all above reasons, he takes exception to the judgmentand order of conviction and prays to interfere by allowing theappeal.On behalf of Respondent - State :-13.Learned APP would strongly supported the judgment oftrial court and also took this court through the testimonies of PW5Vithal and PW7 Haribhau and would submit that, they both aredirect eye witnesses to the occurrence. That, there is promptlodgment of complaint. PW5 Vithal himself is an injured and boththese witnesses are consistent on the point of occurrence. That,their testimonies have not been disturbed during crossexamination. Precisely, such aspects are appreciated by learnedtrial court while accepting the case of prosecution for under section160 of IPC and section 27(2) of Arms Act. According to her, theappreciation is in consonance with the quality of evidence. -9- Cri.Appeal.132.2004Findings are supported by sound reasons and so she prays to not todisturb the said findings. ANALYSIS AND SUMMATION14.After considering the respective submissions advancedby both the sides and here though prosecution has rested its caseon evidence of as many as 8 witnesses, crucial evidence is that ofPW5 Vithal, PW6 PSI Sangram Sangle and PW7 Haribhau, who arepolice personnel and PW8 Dr. Balasaheb Arasulkar is MedicalOfficer. Remaining witnesses are panchas, who have not supportedthe prosecution.15.Before adverting to the evidence on record and whenconviction recorded by trial court is only for commission of offenceunder section 160 of IPC and section 27(2) of Arms Act, it would beprofitable to enumerate essential requirements for attracting eachof the charge and what prosecution is expected to prove to bringhome the charges. Section 160 of IPC provides for punishment forcommitting “Affray”. As to what amounts to affray, it has beendealt by section 159 of IPC and the purport of the same, is asunder:- -10- Cri.Appeal.132.2004“When two or more persons, by fighting in a public place,disturb the public peace, they are said to ‘commit an affray’.” Punishment provided for above offence isimprisonment of either description for a term which may extend toone month. Thus, above provisions postulate participation of morethan two persons, which comprises of fight amongst themselvesand such incident must occur in a public place and moreover, theepisode or incident should further, in consequence, disturb publicpeace. 16.Having borne above legal requirements in mind, asstated above, evidence of PW5 Vithal, PW6 PSI Sangram Sangleand PW7 Haribhau needs to be visited. According to informant PW5 Vithal, the incident tookplace at around 4:00 p.m., was a quarrel between both accused infront of Jagdish Sweet Mart. He deposed that, at such time, 30 to40 persons rushed there. His evidence does not suggest suchpersons to be not from general public, but to be supporters of eachof the above co-accused. According to him, when he intervened,anonymous person assaulted him, causing him injury, PSI Joshitook him to the hospital as well as accused no.2 Shivaji, also aninjured. -11- Cri.Appeal.132.200417.As pointed out by learned Senior Counsel forappellants, while in witness box, this witness, who set law intomotion, described the incidence to be taking place in front ofJagdish Sweet Mart, but in Exh.46/C report, he has defined theplace of occurrence as quarrel going inside the sweet mart and hehimself going inside the shop. While under cross at the hands ofaccused no.1, he answered that, quarrel took place at the steps ofthe shop. In report, he gave information that, both, presentappellants were armed with knife. But, only one is recovered beforethe court. Even as pointed out, accused no.2, who was also injured,had taken along with this witness to the hospital, has not beenexamined. Even police Inspector Joshi, who shifted above witness,is not examined. Spot pancha has not supported, though spotpanchanama got proved through Investigating officer. 18.The Investigating Officer PW6 PSI Sangram Sangle, inparagraph no. 3 of substantive evidence deposed that, spot issituated in front of Jagdish Sweet Mart on the road. This PoliceOfficer was not present at the time of incident, because PW5 Vithalinjured police official merely gave name of PSI Joshi and not PSISangram Sangale. With such material on record, there is force inthe submission on behalf of learned Senior Counsel that, here, inview of distinct places being named by PW5 Vithal in FIR and in -12- Cri.Appeal.132.2004substantive evidence, actual scene of occurrence has not beencogently and firmly proved beyond reasonable doubt. It wasessential for prosecution to prove it for the simple reason that, theessence of the provision is occurrence taking place in a publicplace. Admittedly, no independent member of public has beenexamined by prosecution. Though there was said to be fightbetween two persons, it was expected of prosecution to furtherprove that, there was disturbance to public peace in consequenceto said episode. Again as pointed out by learned Senior Counsel,learned trial Judge has already discarded and refused prosecutioncase regarding commission of offence under sections 143, 147 and148 of IPC. 19.PW7 Haribhau, another crucial witness for prosecutionis examined at Exh.66. His testimony shows that, when theyreached and saw accused no.2 lying on the step of shop, hasdeposed only about coming across PW5 Vithal having sufferedbleeding injury. Therefore, apparently, he is not an eye witness tothe alleged occurrence which took place between two accused. Incross examination, he admitted that, he did not see any knife lyingon the spot.20.Consequently, here, in view of above discussion,prosecution has not substantiated beyond reasonable doubt that, -13- Cri.Appeal.132.2004firstly, there was occurrence in a public place and occurrence wasof such nature in a public peace and tranquility. Above discussedmaterial also creates doubt as to whether incident took place insidethe private shop or outside the shop on the steps or on the publicroad. Resultantly, as essential ingredients for attracting section160 of IPC not being shown to be available, said charge cannot besaid to be proved.21.The second attack and criticism of learned SeniorCounsel was as regards to recording guilt for offence under section27(2) of Arms Act. As correctly pointed out that, here, charge at Exh.23shows that, both accused were called upon to answer chargeframed for offence under sections 143, 147, 148, 353 r/w 149, 333r/w 149, 326 r/w 149, 160 of IPC and 27(1) of Arms Act, 1959.Apparently and evidently no charge under section 27(2) of IPC hasbeen framed and explained to the accused. According to learnedSenior Counsel, it was not open for trial court to record guilt forcharge which was not at all explained to the accused. They had noopportunity to offer their explanation for the said charge, but onaccount of conviction recorded for unexplained charge, seriousprejudice has been caused and as such conviction cannot besustained. -14- Cri.Appeal.132.200422.Learned Senior counsel in support of above contentionseeks reliance on following rulings :- 1] Kiran Arjunsingh Rathod v. State of Maharashtra, 2022 (3) ABR (CRI) 377 2] State of Maharashtra v. Shankar Krisanrao Khade 2008 (6) AIR Bom R 43 (DB)3] Alizar Pereira v. State of Goa 2014 (3) ABR (CRI) 1874] State of U.P. v. Munna, 1973 CRI. L.J. 1708 (V 79 C 518)5] Gyasuddin Khan alias Md. Gyasuddin Khan v. State of Bihar, AIR 2004 SC 210 6] Gadadhar Guru and Anr. v. State of Orissa, 1989 SCC OnLine Ori 130.23.On visiting charge at Exh.23, it is noticed that, nocharge under section 27(2) of Arms Act has been framed or evenexplained to the accused. It is fairly settled legal position that, trialcourt can always convict a person for a charge which is not framedand explained, provided it is for lesser offence. Guilt for a chargeconstituting higher charge cannot be fastened without anythingexplained to the accused. Here, apparently both accused wereexplained only charge for offence under section 27(1) of Arms act,1959, which is punishable with imprisonment for three years butwhich may extend to seven years. Therefore, obviously, accusedpersons are entitled to assume that they have been called upon toanswer only charge of 27(1) of Arms Act and therefore, it was not -15- Cri.Appeal.132.2004necessary for them nor there was any opportunity for them tomeet the evidence of prosecution relating to offence under section27(2) of Arms Act. They were only called upon to answer chargeunder section 27(1) of Arms Act. They were only expected to offerexplanation on above charge and were entitled to rebut only thecharge of 27(1) of Arms Act. The foundation of prosecution case intrial court was 27(1) of Arms Act only. Therefore, they had noopportunity to deal with or answer section 27(2) of Arms Act,which is punishable with imprisonment for seven years but whichmay extend to imprisonment for life. In the considered opinion of this court, taking the aboveposition into consideration, also, the impugned judgment and ordercannot be allowed to be sustained for serious prejudice has beencaused. 24.Further, out of two knives with which appellants weresaid to be armed, only one is seized. The other one is seized fromopen space which is accessible to one and all. Therefore, the verypurport of recovery evidence is also under shadow of doubt. 25.As pointed out, clause V of Schedule I of Arms Actcontemplates deadly weapon as a weapons with blades longer than9'' or wider than 2''. Admittedly, length of blade of the article seized -16- Cri.Appeal.132.2004in this case, is not measured by using scale. There is only referencethat it is six fingers long. Thus, there is ambiguity. Taking suchmateriel into consideration, it cannot be said that the provisionunder section 27(2) of Arms Act are violated. 26.To sum up here, on re-appreciation, it is noticed that,firstly very scene of occurrence is not cogently proved in view ofabove discussed material. Secondly, no members of public wereexamined including the very shop owners, which were located atthe scene of occurrence. Conviction is recorded for a charge whichis not explained and thus serious prejudice has been caused to theappellants. Therefore, interference is called for. Hence, I proceedto pass the following order :- ORDERI)Both the appeals stand allowed.II)The conviction awarded to appellants, namely, (i) ShivajiS/o. Manoharrao Munde and (ii) Sunil Shrirang Phad inSessions Case No.80 of 2001 by the Ist Ad-hoc AdditionalSessions Judge, Ambajogai, District Beed on 21.02.2004for the offence punishable under section 160 of IndianPenal Code and section 27(2) of the Arms Act, 1959,stands quashed and set aside.III)The appellants stand acquitted of the offence punishableunder section 160 of Indian Penal Code and section27(2) of the Arms Act, 1959. -17- Cri.Appeal.132.2004IV)The bail bonds of the appellants stand cancelled.V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale