Case: State Of Maharashttra Vs. Bharat C. Raghani


Decision:
1[ds]50. It appears that after the death of his brother Sunil Jain (A15), upon his belief, tried to implicate A1 to A3 in the case of murder of his brother. In the absence of any threat or any other circumstances indicating the intention of A1, A2 and A3 to kill any of the Jain Brothers, it would not be safe to hold them guilty of murder on such a shaky and unreliable evidence to that extent. It may further be noticed that no overt and covert act in this regard is attributed to A2. A1 is shown to have not observed the professional norms by calling the Jain Brothers in his office to facilitate the execution of release deeds in favour of his client A3. Such a course of conduct may be unprofessional but cannot be described to be criminal warranting a conviction under any provisions of the IPC or TADA. We are, therefore, satisfied that A1 and A2 were not involved in the commission of the crime for which they were charged or any other crime of lesser effect. There is no need of returning a finding against A4 who was also a broker and is stated to have died in a police encounter, unless his complicity is required for the purpose of determining the guilt of any other accused.51. It is established by the prosecution that by the intended transaction of property deal in favour of Labh Constructions, the immediate beneficiary was A3 and ultimate beneficiary Labh Constructions. Subedarsingh A3 is proved to have forged documents Exhibits 107, 108, 109, 110, 111, 112, 113, 114, 116, 131 and 138 for the purposes of completing the sale with the Labh Constructions for which he procured the legal services of respondent No. 1. He is also proved to have got the services of Shaukatali A4, a broker for completion of the deal. Even though there is no evidence that A3 contacted or knew any of the accused Nos. A5 to A13, yet it has come on record that Shaukatali A4 helped him in the transaction. Disbelieving the portion of the statement relating to the threats given by the said accused to the Jain Brothers, the prosecution has placed on record sufficient evidence to show that Shaukatali A4 had been visiting the Jain Brothers and compelling them to complete the transactions by executing the release deeds in favour of A3. On appreciation of evidence, the trial Court reached a conclusion that A3 was having connection with A4 who visited the office of Kamla Constructions from time to time from September, 1994 onwards and forced the Jain Brothers to attend the meetings at the office of Bharat Raghani (A1), the womenfolk in the house of Jain Brothers were threatened on phone and the caller used to tell sometimes that he was Shaukatali. A4 telephoned in the office of Jain Brothers 15-20 minutes prior to the incident and surrendered himself to the police after registration of the case. It is true that on the basis of such conclusions Subedarsingh (A3) cannot be held to be a party to the conspiracy of killing Pradeep Jain or for the commission of other offences under the TADA Act but it is equally true that his involvement in the transaction having been proved needs the determination of the nature of offence committed by him.We are of the opinion that the trial Court adopted a technical approach in appreciating the factum of recovery of weapons and wrongly held that, "the evidence relating to the seizure will have to be totally kept aside". In the Panchnama dated 3.7.1995, (Exhibit 119 at page 1758 to 1760 of the paper-book), signed by the panch witnesses it is stated that the panchas were called by the police on road in front of Room No. 1469, Chawl No. 184 and the recoveries effected. The panch witnesses have fully proved the panchanamas. If in a statement recorded after about two months the accused tried to mislead the court by making a different statement regarding the recovery of the weapon of offence, no credit of it should have been given to him. If the prosecution had successfully proved the panchanamas, it was not proper for the court to fish out a contradiction regarding the recovery and seizure of the weapons on the ground of subsequent confessional statement of the accused recorded on 28th August, 1995. The Court was only concerned with the corroboration of the factum of recovery mentioned in the confessional statements. If the weapons had actually been recovered, no fault can be found with the confessional statements on account of alleged contradiction. We are further of the view that a perusal of the confessional statement of A5 did not disclose that he had stated anywhere that the weapons were actually recovered from his house. What he had stated in his confessional statement was that the weapons which he had kept in his house were produced and handed over to the police which the prosecution fully proved by Panchanama Exhibit 119. The statement of A6 relating to the recovery of weapons from the house of A5 could not have been made a basis for holding that there existed contradiction which persuaded the court not to believe the recoveries as a piece of corroborative evidence. Much has been made out from the display of seized weapons at the Press Conference held by the police after the arrest of the accused. Such an information is based upon the press reports published in the newspapers. The Joint Commissioner of Police who held the press conference stated that if any good work is done with a good detection relating to crime, occurrence of which had been earlier reported in the press or the accused of serious offence or the shooters in the case as may be arrested then to enhance the image of the police in the public, a wide publicity is usually given for which press conferences are held. He presided over the press conference on 3.7.1995 and as he had got information from the DCP about the seizure of weapons. He stated that he directed those officers to produce one AK 56 assault rifle and smaller weapons which were to be displayed in the press conference. According to him such weapons were available with the Special Operation Squad Branch. According to him similar weapons like the weapons seized from the accused were displayed in the press conference. When a question was put to him as to whether there was any hitch in displaying the seized articles and showing the same to the press persons, he replied that normally there was no hitch and in that particular case because of the lack of time to the DCP he might not have been able to bring the seized weapons. The seized weapons were shown in the office of CID Crime in the same building where the office of the Joint Commissioner of Police is also located. There was no cause or occasion for the court to disbelieve the testimony of the Joint Commissioner of the Police. Holding that the only seized weapons were shown to the press, the trial court committed a mistake and it has unnecessarily tried to make a mountain out of mole on such a frivolous ground.60. Similarly there is no substance in the submission made on behalf of A5 and A6 that they were not properly identified in the test identification parade. After holding the confessional statements of A5 and A6 to be voluntarily made and legally admissible in evidence, there is no much significance of the identification parade.61. We, therefore, hold that the trial court committed a mistake of law in not relying upon the confessional statements of A5 and A6 to ascertain their involvement in the commission of crime with which they were charged. Confessional statements having been proved to be voluntarily made and legally recorded, which generally stood corroborated, were sufficient to hold that the aforesaid persons were guilty of hatching the conspiracy with A7 to A13 for commission of offence with which they were charged. Setting aside the judgment of the trial court to that extent we convict A5 and A6 for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Sections 25(1-B)(a), Section 5 read with Section 27 of the Arms, Act, Sections 3(2)(I), 3(2)(ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. We are, however, of the opinion that being mislead youth they do not deserve the maximum penalty imposable under law and the case is not the rarest of the rare cases warranting death sentence. Subhash Bind (A5) and Shekhar Kadam (A6) are, therefore, sentenced to life imprisonment for the major offence of murder, punishable under Section 302 read with Section 120B of the IPC. We do not award separate sentences to the aforesaid accused persons for the other offences committed by them.62. Under the circumstances of the case, the appeal is partly allowed by setting aside the judgment of the trial court by which A4, A5 and A6 were acquitted. Holding A3 guilty for the commission of the offence punishable under Section 384 read with Section 34 of the IPC we convict him for the same. He is sentenced to rigorous imprisonment for two years with fine of Rs. 5,000/-. In case of default in the payment of fine, the said accused shall undergo further imprisonment of six months. A5 and A6 are convicted for the offences under Sections 302, 307 read with Sections 120B, 23, 114 of the Indian Penal Code, Section 3 read with Sections 25(1-B)(a), Section 5 read with Section 27 of the Arms Act, Sections 3(2)(I), 3(2)(ii), 3(3), 3(5), 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and sentenced to life imprisonment for the major offence. We do not award them separate sentences for the other offences. A3, A5 and A6 are directed to surrender to serve the remaining part of their sentences. The judgment of the trial court so far as A1, A2 are concerned, is upheld and their acquittal maintained.