Dismissed

Shrimant @ Yogesh Ishwar @ Vyankati Kale, C.No. 7572, Aurangabad Central Prison v. the State of Maharashtra

Bombay HC12 Dec 2013APEAL/250/2013

Case brief

AI extract

What is this about?

An appeal against conviction and sentencing for possession of a prohibited armed pistol and cartridges. The High Court examined evidence of arrest and recovery followed forensic reports and held the appeal was not sustainable.

What did the court decide?

The criminal appeal was dismissed, the conviction and sentence of five years rigorous imprisonment and fine were upheld.

Shrimant @ Yogesh Ishwar @ Vyankati Kale, C.No. 7572… — Cheque Dishonour | Bombay HC (2013)

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Cri. Appeal No. 250/13

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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 250 OF 2013

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Shrimant @ Yogesh s/o. Ishwar @ Vyankasti Kale, Age 30 years, Occu. Labour, R/o. Kekat Pangri, Taluka Georai, District Beed. ....Appellant.

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Versus

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The State of Maharashtra

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....Respondent.

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Mr. S.S. Jadhavar, Advocate for appellant (appointed). Mr. A.S. Shinde, APP for State.

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CORAM : T. V. NALAWADE, J. RESERVED ON : 6th December, 2013 PRONOUNCED ON :12th December 2013

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JUDGMENT :

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The appeal is filed against judgment and order of Sessions Case No. 229/2012, which was pending in the Court of Additional Sessions Judge, Vaijapur, District Aurangabad. The appellant is convicted and sentenced for offence punishable under section 25 (1-A) of Arms Act, 1959. The substantive sentence of R.I. for five years is given and the fine of Rs. 1,000/- is also imposed. He is also convicted for offence punishable under

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section 135 of Bombay Police Act and he is sentenced to suffer R.I. for four months and to pay fine of Rs. 500/-. Both the substantive sentences are made to run concurrently. The appellant has been in jail since 17.1.2000. Both the sides are heard.

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Action was taken against the appellant when police received information against him on 17.1.2010. The Crime Branch of Aurangabad had information that appellant, who was wanted in dacoity cases registered in Maharashtra State and other States, was to come within local jurisdiction of Waluj Police Station near Limbe Jalgaon. P.S.I. Sitaram Mahatre collected his staff and he went to the aforesaid spot. The members of the team of Mahatre disbursed and waited at the spot at about 1.00 hour of the night between 16.1.2010 and 17.1.2010. After some time, they noticed that the appellant had arrived there. They rushed forward and held him. On inquiry, he gave his name and it was confirmed that he was the wanted person. When personal search was taken, he was found in possession of one pistol, having four cartridges in magazine. Four separate cartridges were found in watch pocket of his pant. He was also found in possession of one knife. The appellant could not give satisfactory explanation with regard to fire arm and the cartridges. In the presence of panch witnesses,

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these articles came to be seized. In view of notification issued under section 31 of Bombay Police Act, 1951 at the relevant time, the provisions of Bombay Police Act were also used and the crime came to be registered for aforesaid offences on the basis of report given by P.S.I.

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Ramakant Padwal, who was working as P.S.I. in Crime Branch was given the investigation of the case. During investigation, he recorded statements of the members of the aforesaid team. He had also accompanied the team when the action was taken by the complainant. He forwarded the fire arm and cartridges to forensic laboratory and report is given that the fire arm was in working condition and the cartridges could be fired. Padwal filed chargesheet against the appellant.

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In the Trial Court, six witnesses including aforesaid two police officers, were examined. Some Police Constables, who had taken part in the action, were also examined and panch witnesses on the seizure panchanama were also examined. The Trial Court has believed the witnesses. The accused took the defence of total denial during trial including the statement given by him under section 313 of Criminal Procedure Code.

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Cri. Appeal No. 250/13

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In the appeal, the learned counsel for the appellant who was appointed by this Court through Legal Aid, mainly submitted that all the witnesses examined against the appellant are interested witnesses and the provisions of sections 41-B, 52, 102 and 165 of Cr.P.C. are not complied with. Alternatively the learned counsel argued that the punishment is hard in comparison to the offence for which the charge has been framed and he submitted that a lenient view needs to be taken in view of nature of evidence given by the prosecution.

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The evidence of Mahatre (PW 1) shows that he had taken action on the basis of information received by the Crime Branch, which was working in Commissioner Office, Aurangabad and he had taken panch witnesses with his team of 20 persons. He has given evidence that the accused was wanted in so many dacoity cases and so they went to the spot for arresting the accused. He has given evidence that when they noticed the accused on the spot described by the informer, they took action at about 1.30 a.m. of 17.1.2010 and the accused came to be held. He has given evidence that on personal search, a pistol was recovered from the possession of the accused and it was having magazine with four live cartridges. He has given evidence that four live cartridges were found in another pocket of the pant and

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other articles like a knife were recovered from him. He has given the description of the cartridges and the weapon in his evidence. He has given evidence that Inspector Chate prepared the seizure panchanama in his presence and the report was given by him. The report at Exh. 19 is proved in his evidence and the oral evidence is consistent with this report.

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There is some cross examination of PW 1 on the nature of weapon, whether it was automatic or manual, but in view of the identification of weapon done by the witnesses and the report of the expert, there is no need to discuss the cross examination on that point.

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Panch witness Amin (PW 2) has turned hostile. But, the other panch witness Vishal Zodage (PW 5) has supported the prosecution. His evidence is consistent with the case of the prosecution. He has identified the articles recovered from the accused and he has identified the accused in the Court. In the cross examination, he has admitted that he was collected by police from the vicinity of the office and then he was taken to the spot where the action was taken. This circumstance cannot make much and due to this circumstance, the evidence of the witness cannot be discarded. Thus, there is evidence on seizure

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panchanama from panch witness.

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The names of police staff, who took part in action are mentioned in the report and the crime was registered in Waluj Police Station on that night at 4.05 a.m. Bhimrao Gaikwad (PW 3) and Ramakant Padwal (PW 6) have also given evidence on the point of arresting of accused and recovery of fire arm and cartridges from his possession. In view of record of arrest and seizure panchanama, it is not possible to discard the evidence given by the prosecution.

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The prosecution has examined the carrier Constable Saiyed Baba (PW 5), who carried the fire arm to the office of expert from Mumbai. Office copy of covering letter is produced at Exh. 35. The opinion of the expert is at Exh. 44 and it shows that it was one country made pistol with magazine. The pistole was capable of chambering and firing 7.65 mm pistole cartridges. Residue of fired ammunition - nitrite was detected in the barrel washings of pistol showing that it was used for firing prior to its receipt in laboratory. Two cartridges, which were 7.65 mm pistol cartridges, were successfully test fired by expert through this pistol. This evidence is sufficient to prove the offence of possession of fire arm and cartridges punishable under section 25

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(1-A) of the Arms Act.

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The learned APP placed reliance on the case reported as 2010 (3) SCC 746 [Ajmer Singh Vs. State of Haryana] on the point of appreciation of evidence when no independent witness is examined by the prosecution. The Apex Court has observed that it may not be possible to find independent witness at all places, at all times and so obligation to take public witnesses is not absolute. It is observed that it is up to the Court to consider the circumstances of the case and to find out as to whether it was possible for the investigating agency to associate independent witnesses with raid or arrest of culprit or with recovery made. It is observed that only due to absence of independent witnesses, the recovery is not vitiated. This Court has considered the relevant circumstances in this regard and observed that there were witnesses, though they were not collected from the locality from where the action was taken. Further it was night time. So, not much can be made out due to circumstance that the panch witnesses were taken from the office to the place of action.

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Alternative argument was advanced by the learned counsel for appellant that a lenient view needs to be taken and

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the penalty needs to be reduced. He submitted that in view of nature of offence, the sentence of undergone period, which is around 3 years 11 months, will be just and proper sentence in this case. On this point, the learned counsel for the appellant cited some reported cases like AIR 1973 AIR (SC) 1379 [Durga Dass Vs. State of H.P.] and 1972 AIR (SC) 2044 [Jagdish Prasad alias Jagdish Prasad Gupta VS. State of West Bengal]. In these cases, the Apex Court has laid down that when in a section discretion is given to the Court to give sentence of less than minimum period, such sentence can be given by giving reasons. There cannot be any dispute over this proposition. However, in the case reported as (2005) 8 SCC 1 [State of M.P. Vs. Bala

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alias Balaram], the Apex Court has laid down that when statute prescribes minimum penalty and no discretion is left with the Court, the Court cannot give less than minimum sentence. It is observed that it is necessary for the Courts to imbibe the legislative wisdom and to respect it. These observations are made as the Courts like J.M.F.C., Sessions Court and even High Court are bound on such point by statutory provisions. In view of these circumstances, this Court holds that the aforesaid proposition the Court can use the discretion cannot be used in the present case. Section 25 (1-A) of Arms Act runs as under :-

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"(1-A) Whoever acquires, has in his

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possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine."

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The aforesaid provision shows that no discretion is left with the Court when the offence is proved. Admittedly, there is prohibition to possess the fire arms like pistol and the appellant was found in possession of pistol which was in working condition and live cartridges. As minimum penalty is given, it is not possible to interfere in the decision of the Trial Court.

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So the appeal stands dismissed. The fees of the learned counsel Shri. S.S. Jadhavar appointed through legal aid to represent the appellant is quantified as Rs. 3000/- (Rupees three thousand only).

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[ T. V. NALAWADE, J. ]

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ssc/

Shrimant @ Yogesh Ishwar @ Vyankati Kale, C.No. 7572, Aurangabad Central Prison v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shrimant @ Yogesh Ishwar @ Vyankati Kale, C.No. 7572, Aurangabad Central Prison v. the State of Maharashtra

Case brief

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What did the court decide?

What the court decided

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