Case: Chandrasekhar Surechandra Bhatt & Others Vs. State of Maharashtra

1. This is an appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act (in short "TADA" ). Four persons were convicted by a Designated Court, first among them was of the offences under Sections 307 and 399 of the Indian Penal Code. The remaining appellants were convicted under Section 399 IPC alone. The first appellant was sentenced to imprisonment for ten years on the first count and all the appellants were given the sentence of rigorous imprisonment for seven years in respect of the latter count. As a charge framed against them included offence under TADA it was tried before the Designated Court as per the provisions of TADA. 2. The case of the prosecution was this : A gang of dacoits including the appellants determined to make a strike, during the night of 1-5-1995 on the residence of an industrialist by the name of Govind Damodar Kelkar (he is said to be one of the proprietors of an industry by the name of S. H. Kelkar and Company), loot the residents and to kidnap him, to keep him for ransom by knocking off a huge sum of Rs. 20 crores. The police had sleuth information regarding the planned operation and therefore they formed a raiding party for outwitting the dacoity attempt. One of the police party was sent in the guise of a tea peddler and the remaining police party took different places in anticipation of the arrival of the dacoits. The police party was headed by Inspector Naik (before he could be examined in court he died in a motor accident). After midnight the dacoits came in two motor cars and reached the particular spot. The dacoits alighted from both the cars and then P.W. 2 Sub-Inspector who was in the guise of a tea peddler went towards them offering tea. They declined the offer for supply of tea, but P.W. 2 passed the predetermined signal to the other police officers who immediately emerged from concealment and overpowered the dacoits in the said operation. First appellant Chandrasekhar Bhatt fired his pistol at the chest of Inspector Naik. But he escaped as he was then wearing a bulletproof vestment. The bullet got embedded in the vestment, but did not go further forward. All the dacoits were caught except one Shekhar @ Anna Sonnappa Hegade who escaped from being caught.3. A pistol was recovered from the first appellant and a revolver was recovered from the second appellant for which a panchnama was prepared. The bullet embedded in the vestment worn by Inspector Naik was taken out at the police station for which also a panchnama was prepared.4. The evidence consists of the testimony of P.W. 2 the Sub-Inspector of Police who went in the guise of a tea peddler, P.W. 4 a Chowkidar attached to Kelkar Industries and P.W. 15 Atma Ram who was also present at the time of the operation though he had conducted part of the investigation also.5. As the most important evidence was that of P.W. 2 Sub-Inspector on whose information the FIR was registered at 1.45 a.m. on the same night, we went into his evidence threadbare. We perused the other evidence also. P.W. 2 had given full narration of the event. If his testimony is believed it admits of no doubt that the conviction passed by the Designated Court should be upheld. 6. Learned counsel for the appellants contended that P.W. 2 cannot be believed for so many reasons, main among which is that he made improvements on his version to suit the prosecution case. He stated instances of such improvements. We have applied our mind and noticed that though there were some marginal variations on certain aspects as between his statement recorded under Section 161 of the Code of Criminal Procedure and the testimony given in court, such variations cannot be dubbed as improvements made with any sinister motive. They are elaborations elicited by the Public Prosecutor during the examination-in-chief. It is the prerogative of the Public Prosecutor to elicit such points from a witness as he deems necessary for the case. No Public Prosecutor can be nailed to the statement recorded under Section 161 of the Code. We scrutinised the so-called improvements from that angle and we are satisfied that P.W. 2 had basically remained at the same position which he has stated in the FIR. 7. P.W. 2s version is fully supported by circumstances in this case particular among which was the recovery of the pistol and the revolver from the appellants. That apart, the recovery of a bullet from the vestment of Inspector Naik is a clinching circumstance which ensures confidence in our mind regarding the truth of the version of P.W. 2. The evidence of P.W. 4 Chowkidar attached to Kelkar has been criticised by learned counsel mainly on the ground that he is obliged to Kelkar. He is examined for his role as Chowkidar of Kelkar and therefore the criticism that he is obliged to Kelkar is of no avail. Of course learned counsel contended that there was another Chowkidar working in the same establishment, but he has not been examined. We are only interested in weighing the evidence of the Chowkidar who was examined and not the one who was not examined, unless the non-examination of that Chowkidar could be shown to be of any ulterior motive. The defence did not establish any such ulterior motive for not examining the other Chowkidar. 8. So far as the first appellant is concerned he cannot escape from conviction under Section 307 because it was he who fired the pistol at Inspector Naik. Of course, learned counsel made an attempt to show that there was no intention to kill the Inspector but the intention was only to escape after inflicting injury on the Inspector (this argument was made as an alternative argument). We are unable to appreciate the said argument in the light of the use of the lethal weapon and the situs of the wounds. 9. It was contended that regarding Appellants 2-4 there is no evidence regarding preparation to commit dacoity. One of the most crucial circumstances presented by the prosecution is a dialogue which transpired between the appellants at the site which is thus : "As per the plan we will first loot the belongings and then abduct Kelkar in car." * 10. It was contended that it was an artificial introduction of the dialogue. The only possibility for communicating between the occupants of two different vehicles is when they come out of it to speak to each other. There is no improbability in one of them reminding the others of the sequence to be followed in the operation. After all the dialogue was not stated to the hearing of the police officers but hearing of a tea vendor overhearing it and need not concern the culprits much as they did not then know that the tea vendor was really a police officer. As the Designated Court placed reliance on that part of the evidence of P.W. 2 we do not find any reason to take a different view thereon.11. On the whole we are satisfied that the prosecution has made out the case for the offence under Section 307 IPC as against the first appellant and Section 399 IPC as against all the appellants.12. Though a plea was made for reduction of the sentence, on the broader conspectus of this case and the lethal weapons used by the dacoits, we are not inclined to show any leniency. Accordingly, we maintain the sentence as well. 13.

Decision:
0[ds]We have applied our mind and noticed that though there were some marginal variations on certain aspects as between his statement recorded under Section 161 of the Code of Criminal Procedure and the testimony given in court, such variations cannot be dubbed as improvements made with any sinister motive. They are elaborations elicited by the Public Prosecutor during theIt is the prerogative of the Public Prosecutor to elicit such points from a witness as he deems necessary for the case. No Public Prosecutor can be nailed to the statement recorded under Section 161 of the Code. We scrutinised theimprovements from that angle and we are satisfied that P.W. 2 had basically remained at the same position which he has stated in theare only interested in weighing the evidence of the Chowkidar who was examined and not the one who was not examined, unless theof that Chowkidar could be shown to be of any ulterior motive. The defence did not establish any such ulterior motive for not examining the otherare unable to appreciate the said argument in the light of the use of the lethal weapon and the situs of thethe Designated Court placed reliance on that part of the evidence of P.W. 2 we do not find any reason to take a different view thereon.11. On the whole we are satisfied that the prosecution has made out the case for the offence under Section 307 IPC as against the first appellant and Section 399 IPC as against all the appellants.12. Though a plea was made for reduction of the sentence, on the broader conspectus of this case and the lethal weapons used by the dacoits, we are not inclined to show any leniency. Accordingly, we maintain the sentence as well.