Ashok Shankar Khalase vs State of Maharashtra

V.K. Tahilramani, J—This appeal is preferred by the appellant - original accused against the judgment and order dated 17.4.2006 passed by the learned II Ad-hoc Additional Sessions Judge, Nashik in Sessions Case No. 167 of 2005. By the said judgment and order, the learned Session Judge convicted and sentenced the appellant as under:-

The learned Sessions Judge directed that all the substantive sentences shall run concurrently.

The prosecution case briefly stated, is as under:

(a) Deceased Raghunath was the husband of PW 7 Shobha. Raghunath was residing with his family in Onkarbaba Chawl at Phule Nagar, Nashik. The appellant was married to Ranjana who was the sister of Raghunath. The appellant was residing with his wife Ranjana at Shivaji Nagar locality of Satpur area in Nasik. Ranjana was always complaining that the appellant used to keep illicit relations. Raghunath tried to persuade the appellant on many occasions not to keep illicit relations with other women and be faithful to his wife Ranjana, however, the appellant used to become angry because of persuasion of Raghunath.

(b) Before marriage, the appellant was unemployed. Raghunath helped the appellant to get employment as a security guard in Nashik Merchants'' Co-op Bank, Dhanvardhini Branch, Nashik where Raghunath was working as a driver. The bank was situated near Nehru Garden at Nashik. Raghunath had spent money for the course which the appellant was required to undergo to handle fire arms.

(c) The appellant was working as security guard in the said bank since last five years. Ambadas Pagare and PW 4 Sanjay Thakur were also working as security guards in the very same bank. The duties of the security guards were fixed in three shifts so that one guard remained on duty around the clock. The bank owned two guns, both were 12 bore guns of Cousins company. The bank used to provide gun and cartridges to the security guards. One gun was provided to the appellant and the other gun was provided to Sanjay Thakur. Security guard Ambadas Pagare was not given any gun. The guards were supposed to possess the gun while they are in the premises of the bank during their duty hours. After the duty hours, the security guard was supposed to keep the gun provided to him in the custody room situated in the premises of the bank. The guard was supposed to keep the gun in a cupboard and lock the cupboard. He was supposed to handover the key of the cupboard to the next security guard. The serial number of the gun provided to the appellant was 13823 and the serial number of the gun provided to Sanjay Thakur was 13842. The licence of both the guns was valid upto 15.5.2007. The appellant was having licence to use the gun, hence, he was employed as security guard in the said bank.

(d) On 23.6.2005, PW 5 Bhaskar Lokhande who was working as a peon in the very same bank was on duty from 3.00 p.m. to 9.00 p.m. On that day at about 4.00 p.m., the appellant told him that in the night, they will both sit together for taking drinks. At 9.00 p.m., after the duty of Bhaskar Lokhande was over, the appellant came to the bank. The appellant had brought a bottle of liquor with him. The appellant and Bhaskar Lokhande sat down to have drinks. At about 10.15 p.m., Bhaskar Lokhande was proceeding to his house on bicycle. At that time, the appellant followed him on bicycle. The appellant told Bhaskar Lokhande that he wanted to go to Phule Nagar to visit Raghunath (deceased), hence, the appellant and Bhaskar Lokhande proceeded on their bicycles to Phule Nagar. They met Raghunath near Country Liquor Shop situated ahead of Phule Nagar. An altercation took place between the appellant and Raghunath. Bhaskar Lokhande tried to intervene and separate them. Raghunath, however, caught hold of the collar of the shirt of Bhaskar Lokhande and pushed him and told him to go away as he (Bhaskar) was not concerned with the affairs between Raghunath and the appellant. Raghunath then slapped the appellant on his face. Bhaskar Lokhande then left the spot.

(e) On 23.6.2005, PW 4 Sanjay who was working as security guard in the said bank was on duty from 12.00 midnight till 8.00 a.m. on 24.6.2005. He took out the gun assigned to him and five cartridges from the cupboard. At about 2.30 a.m. on 24.6.2005, the appellant came to the bank premises. Sanjay asked the appellant why he had come to the bank at odd hours of the night. The appellant told him that he had a party with Bhaskar Lokhande (PW 5) and Raghunath Gaikwad (deceased). The appellant told Sanjay that as it is night time, he will sleep on the platform of the bank and he will go to his house at 4.00 a.m. At that time, the appellant was drunk. The appellant then went to sleep on the platform of the bank. Sanjay woke up the appellant at 4 a.m. The appellant told Sanjay that he will take over the duty in the morning and went back to sleep. Sanjay again woke up the appellant at about 7 a.m. and asked the appellant whether the appellant will join the duty or he will go to his house and come back. The appellant told Sanjay that he will resume the duty. The appellant then washed his face. At about 7.15 a.m., Sanjay kept his gun in the cupboard and handed over the key of the cupboard to the appellant.

(f) At about 8.30 a.m., when Sanjay was at his house, he received a phone call on his cellphone from the sweeper of the bank that the appellant was not seen in the bank premises. Sanjay told him to search the appellant in the premises of the bank. At about 9.15 a.m., when Sanjay himself came to the bank, he found the guard room open. The key of the cupboard was in the key hole of the cupboard. When Sanjay opened the cupboard, he found that there was only one gun bearing No. 13842 in the cupboard and 10 cartridges were missing from the cupboard. The appellant was not found anywhere in the premises of the bank.

(g) It is the prosecution case that the appellant took the gun bearing No. 13823 along with 10 cartridges and went to the house of Raghunath. At about 7 a.m., the appellant challenged Raghunath saying, "Ooth Mazyashi Bheed" (wake up and accept my challenge). At that time, PW 7 Shobha, the wife of Raghunath was present in the house. She asked the appellant what had happened between him and her husband Raghunath. The appellant told her to keep quiet. The appellant told Raghunath to come outside the house. Raghunath then came out of the house. The appellant then fired gun, however, the bullet did not hit Raghunath. The appellant then started running away. Raghunath started chasing the appellant. Shobha, the wife of Raghunath also ran behind her husband. The appellant turned towards Raghunath. The appellant then fired a bullet from the gun which hit on the left side of the head of Raghunath. Raghunath fell down. The appellant then ran away from the spot. This incident of firing at Raghunath was also witnessed by PW 9 Santosh who was also residing in Onkarbaba chawl at Phule Nagar where deceased Raghunath was residing.

(h) Meanwhile the appellant went to Panchavati Police Station with the gun and eight cartridges. At that time, PW 10 P.S.I. Shinde was on duty at the Police Station. The appellant told P.S.I. Shinde that he had killed his brother-in-law Raghunath by firing bullet on him from the gun and he is submitting the gun and remaining cartridges. P.S.I. Shinde seized the gun and the cartridges from the possession of the appellant in presence of panchas. The statement of the appellant was recorded and it was treated as F.I.R. Thereafter investigation commenced.

(i) The dead body of Raghunath was sent for postmortem. The gun seized from the appellant was sent for forensic analysis. So also the pellets found in the head of Raghunath were sent for analysis. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.

Charge came to be framed against the appellant under Section 302 of IPC, 27(1) of the Arms Act and 135 of the Bombay Police Act. The appellant/accused pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.

We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant fired at his brother-in-law Raghunath and caused his death.

The conviction is mainly based on the evidence of two eye witnesses i.e. PW 7 Shobha and PW 9 Santosh. Shobha was the wife of deceased Raghunath and PW 9 Santosh was the neighbour of deceased Raghunath. PW 7 Shobha has stated that she and her husband were residing in a room situated in Onkarbaba Chawl at Phule Nagar, Nashik. Her husband was working as a driver in Nashik Merchants'' Co-op Bank. The appellant was married to Ranjana who was the sister of Raghunath. Before marriage of the appellant, he was unemployed. Raghunath then spent money for a course attended by the appellant. After that Raghunath helped the appellant to get employment in Nashik Merchants'' Co-op Bank. The appellant was residing at Shivaji Nagar locality of Satpur, Nashik. Shobha has stated that Ranjana used to complain that the appellant was keeping illicit relations with other women. Raghunath tried to persuade the appellant on many occasions not to keep relations with other women and be faithful to his wife. Due to this, the appellant used to get angry.

Shobha has further stated that on 24.6.2005 at about 7.00 a.m. the appellant came to their house. The appellant had a gun with him. The appellant challenged Raghunath saying, "Ooth Mazyashi Bheed" (wake up and accept my challenge). Shobha asked the appellant what had happened between him and her husband Raghunath. The appellant told her to keep quiet. The appellant told Raghunath to come outside the house. Raghunath then came out of the house. The appellant then fired gun, however, the bullet did not hit Raghunath. The appellant then started running away. Raghunath started chasing the appellant. Shobha also ran behind her husband. The appellant turned towards Raghunath and fired a bullet from the gun which hit on the left side of the head of Raghunath. Raghunath fell down. The appellant then ran away from the spot.

The second eye witness is PW 9 Santosh. Santosh was residing in a room at Onkarbaba Chawl in Phule Nagar where Raghunath was also residing. Santosh has stated that on 24.6.2005 at 7.30 a.m., he was proceeding towards common latrine to answer nature''s call. At that time, he saw the appellant coming on bicycle towards the house of Raghunath. He knew the appellant as the appellant was brother-in-law of Raghunath. The appellant parked his bicycle near the public latrine. At that time, the appellant had a gun with him. The appellant proceeded towards the house of Raghunath. Santosh then went to the latrine. While Santosh was in the latrine, he heard sound of firing. When he came out of the latrine, he saw Raghunath running in the lane. He followed Raghunath. Raghunath was extending apology to the appellant. The appellant then fired at Raghunath. The bullet hit Raghunath on his head. The appellant then ran away.

The evidence of PW 5 Bhaskar Lokhande shows the motive for the appellant to commit the offence. Bhaskar Lokhande was employed as a peon in Nashik Merchants'' Coop Bank since the last seven years. He knew the appellant. On 23.6.2005, Bhaskar Lokhande was on duty from 3.00 p.m. to 9.00 p.m. At about 4.00 p.m., the appellant told him that in the night, they will both sit together for taking drinks. At 9.00 p.m., after the duty of Bhaskar Lokhande was over, the appellant came to the bank. The appellant had brought a bottle of liquor with him. The appellant and Bhaskar Lokhande sat down to have drinks. At about 10.15 p.m., Bhaskar Lokhande was proceeding to his house on bicycle. At that time, the appellant followed him on bicycle. The appellant told Bhaskar Lokhande that he want to go to Phule Nagar to visit Raghunath (deceased), hence, the appellant and Bhaskar Lokhande proceeded on their bicycles to Phule Nagar. They met Raghunath near Country Liquor Shop situated ahead of Phule Nagar. An altercation took place between the appellant and Raghunath. Bhaskar Lokhande tried to intervene and separate them. Raghunath, however, caught hold of the collar of the shirt of Bhaskar Lokhande and pushed him away and told him to go away as he was not concerned with the affairs between him and the appellant. Raghunath then slapped the appellant on his face. Bhaskar Lokhande then left the spot. The incident occurred early in the morning on the very next day. It appears that on account of Raghunath slapping the appellant, the appellant had a grudge against Raghunath, hence, he committed the murder of Raghunath the next day in the morning. It is also pertinent to note that at about 10.30 p.m., when Raghunath slapped the appellant, the appellant did not have a gun with him because he was off duty, hence, he waited till the next day morning. Then he took the gun allotted to him by the bank and 10 cartridges and came and fired at Raghunath and caused his death.

PW 3 Bhaskar Shinde was working as a manager in Nashik Merchants'' Co-op Bank, Dhanvardhini Branch. The said branch was situated near Nehru Nagar at Nashik. Bhaskar Shinde has stated that he knew the appellant because he was working as a security guard at their branch since last five years. Sanjay Thakur and Ambadas Pagare were also working as security guards in the very same bank. The duties of the security guards were fixed in three shifts so that one guard remained on duty around the clock. The bank owned two guns, both the guns were 12 bore guns of Cousins company. The bank used to provide gun and cartridges to the security guards. One gun was provided to the appellant and the other gun was provided to Sanjay Thakur (PW 4). Security guard Ambadas Pagare was not given any gun. The guards were supposed to possess the gun while they are in the premises of the bank during their duty hours. After the duty hours, the security guard was supposed to keep the gun provided to him in the custody room situated in the premises of the bank. The guard was supposed to keep the gun in a cupboard and lock the cupboard. He was supposed to handover the key of the cupboard to the next security guard. The serial number of the gun provided to the appellant was 13823. The licence of both the guns was valid upto 15.5.2007. The appellant was having licence to use the gun, hence, he was employed as security guard in the said bank.

PW 3 Bhaskar Shinde has further stated that on 24.6.2005, he was at his home. At about 9.15 a.m., he received information on telephone from the bank that the guard was not on duty in the bank. On that day, from 8.00 a.m. to 4.00 p.m., the appellant was supposed to be on duty. Bhaskar Shinde then immediately went to the bank. He saw that the security room was open. The cupboard in the security room was also open. He found that one gun and 10 cartridges were missing from the cupboard. He then went to Bhadrakali Police Station and lodged report about the gun and cartridges being missing. The said report is at Exh. 33. The evidence of PW 7 Shobha and PW 9 Santosh shows that on 24.6.2005 at about 7.00-7.30 a.m., the appellant was carrying a gun and he fired from the gun at the deceased. Thus, the evidence on record shows that the appellant took the gun from the bank and the cartridges allotted to him and to security guard PW 4 Sanjay Thakur and went and fired at the deceased.

PW 4 Sanjay Thakur was working as a security guard in Nashik Merchants'' Co-op Bank since last 8 years. He has stated that there were three security guards in the bank. At the relevant time, the appellant, he and Ambadas Pagare were working as security guards in the bank. Ambadas Pagare was a guard without any arms. There were two guns in their bank which were provided to the guards on duty. They were 12 single bore guns. He was given gun bearing No. 13842 and the appellant was given gun bearing No. 13823. He and the appellant were each given five cartridges. Sanjay Thakur has further stated that there is a guard room in the bank. In the guard room, there is a cupboard. After duty, the gun is required to be kept in the cupboard. The key of the cupboard is to be handed over to the guard who was taken over duty in the next shift. On 23.6.2005, he took over the duty at 12 mid night. He was on duty till 8 a.m. On 24.6.2005 on resuming duty, he had taken the key of the cupboard in the guard room from Ambadas. He then opened the cupboard and took out gun bearing No. 13842 and five cartridges from the cupboard.

Sanjay has further stated that about 2.30 a.m., the appellant came to the bank premises. Sanjay asked the appellant why he had come to the bank at odd hours of the night. The appellant told him that he had a party with Bhaskar Lokhande (PW 5) and Raghunath Gaikwad (deceased). The appellant told Sanjay that as it is night time, he will sleep on the platform of the bank and he will go to his house at 4.00 a.m. At that time, the appellant was drunk. The appellant then went to sleep on the platform of the bank. Sanjay woke up the appellant at 4 a.m. The appellant told Sanjay that he will now take over the duty in the morning and went back to sleep. Sanjay again woke up the appellant at about 7 a.m. and asked him whether he will join duty or he will go to his house and come back. The appellant told Sanjay that he will resume duty. The appellant then washed his face. At about 7.15 a.m., Sanjay kept his gun in the cupboard and handed over the key of the cupboard to the appellant. Then Sanjay went away.

Sanjay has further stated that thereafter the appellant as well as the gun was found missing from the premises of the bank. The evidence further shows that the five cartridges allotted to the appellant and five cartridges allotted to the other guard were found missing from the bank. PW 9 Santosh had seen the appellant with a gun in his hand on 24.6.2005 at 7.30 a.m. This clearly shows that the appellant took the gun and the cartridges from the bank and went to the house of Raghunath and thereafter fired at Raghunath.

PW 10 P.S.I. Shinde was attached to Panchavati Police Station. He has stated that on 24.6.2005 at about 7.00 a.m., the appellant came to the police station with a 12 Bore gun and 8 cartridges. The appellant told him that he had killed his brother-in-law by firing the bullets from the gun and he submitted the gun and remaining cartridges to him. On inquiry, the appellant stated that the incident occurred at Phule Nagar. The only part from the statement made by the appellant to PSI Shinde which can be taken into consideration is that the appellant told PSI Shinde that he is handing over the gun and remaining cartridges. PSI Shinde then informed Phule Nagar Police Station and informed about what had happened. In the meanwhile, he also seized the gun and the cartridges from the possession of the appellant in presence of panchas. PW 2 Arjun was one of the panch witnesses relating to seizure of the gun and cartridges from the appellant. This gun and the cartridges were sent for analysis along with the pellets found in the head of Raghunath. The report Exh. 52 shows that the gun had been used for firing prior to its receipt in the laboratory. 12 bore shotgun cartridges from laboratory stock were successfully test fired from the gun. The empties Exh. 2 and Exh. 3 which were found at the spot were also sent for analysis and the report shows that the characteristic features of firing pin impression on the empties in Exh. 2 and Exh. 3 tallied among themselves and with those on the cartridges test fired from the gun Exh. 1. The report further shows that the weight and dimension of the fired pellets corresponds to the pellets generally used in such guns. Thus, these reports also support the prosecution case.

It is the prosecution case that the appellant fired at Raghunath. The first bullet did not hit Raghunath but the second bullet hit Raghunath on the left side of the head. This is corroborated by the medical evidence. PW 8 Dr. Kasodkar conducted the postmortem on the dead body of Raghunath. He found the left side of the skull of the deceased was completely open with lacerated brain material protruding out. Multiple fractures were found on left side of the head i.e. on left parietal and occipital bone. Multiple clots of blood were found in the brain material. Intra cerebral bleeding was present. Left side of the skull open with multiple fractures. Multiple pellets were found in the brain. Before postmortem, X-ray of the skull was taken. The X-ray plate reveals presence of multiple pellets in the brain. According to Dr. Kasodkar, all the injuries found on the corpse were ante mortem in nature. In the opinion of Dr. Kasodkar, the deceased died because of shock due to hemorrhage due to multiple laceration of brain with multiple fracture of skull bones due to bullet injury and the injury is possible by the fire arm (Article No. 1). Thus, it is seen that the medical evidence is totally consistent with the prosecution.

On going through the record, we find that there is sufficient evidence to prove beyond reasonable doubt that the appellant fired at his brother-in-law Raghunath with a gun which was in his possession due to which Raghunath sustained injuries on the head and died. Thus, we find no merit in the appeal. The appeal is dismissed.

Office to communicate this order through the concerned prison authorities to the appellant who is in jail.

We quantify legal fees to be paid by the High Court Legal Services Committee to the appointed Advocate Ms. Rohini M. Dandekar at Rs. 5000/-.