1 cr-wp-2472-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 2472 OF 2010 Mr. Janardhan Tukaram Bhagne ..Petitioner Vs. The State of Maharashtra and Anr. ..Respondents .... Mr. A.M.Saraogi Adv. for Petitioner Mr. R.N.Mishra Spl. Public Prosecutor along with Mr. S.A.Shaikh APP for State-respondent no.1 Mr. Ramprasad V.Gupta Respondent no.2 in person present .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 19, 2010 ORAL ORDER: 1 Heard the learned counsel for the petitioner-original accused no. 15, the learned Special Public Prosecutor for the State and respondent no.2-original complainant in person. 2 The petitioner is seeking quashing of FIR No.246 of 2009 of Versova Police Station, Mumbai. The said case is under Sections 364, 302 r.w. 120-B of IPC. 3 The learned counsel for the petitioner submitted that the 2 cr-wp-2472-10 incident has occurred on 11.11.2006, whereas the FIR came to be lodged on 20.8.2009 which shows that the petitioner has been involved in this case belatedly by way of an after thought. The petitioner has not participated in the said incident. He submitted that it is not even the prosecution case that the petitioner was present when the incident occurred. He submitted that even as far as Section 120-B of IPC is concerned, there is no material to show that the petitioner was involved in any conspiracy to abduct or to murder Ramnarayan Vishwanath Gupta alias Lakhan Bhaiyya. On the other hand, the learned Special Public Prosecutor submitted that there is sufficient material to show that the petitioner had entered into a criminal conspiracy along with others to do away with Ramanaryan Gupta. 4 In order to better appreciate the controversy, it would be necessary to give a few facts as revealed from the statement of complainant and other witnesses in this case. The complainant has stated that the deceased was his brother. On 11.11.2006 at about 1.15 p.m. he was informed on telephone that some persons who looked like police, came and took away his brother Ramnarayan Gupta and the friend of his brother i.e. Anil Bheda in a police jeep. He was informed that his brother and Anil were beaten by the other persons and then put in the vehicle. In the 3 cr-wp-2472-10 meanwhile, he came to know that his brother was taken to the Crime Branch. The complainant on the very same day at about 4 p.m. sent telegrams to the Commissioner of Police at Navi Mumbai, Mumbai and Thane stating that his brother and Anil were picked up by three police officers. Fax messages were also sent in name of Aruna Bheda i.e. wife of Anil Bheda to Commissioners of Police Navi Mumbai and Thane at 4.45 p.m. stating that Anil Bheda and his friend Ramanarayan Gupta were picked up by plain clothes police men from Sector 9 Vashi, Navi Mumbai in silver Quallis Car and it was suspected that they will be killed in a fake encounter and to please save their lives. He tried to send fax message to the Commissioner of Police, Mumbai but could not do so as he did not get fax tone on the fax machine of the Commissioner of Police, Mumbai. At about 8.30 p.m. on that day, a news was flashed on T.V. Channel that Ramanarayan Gupta @ Lakhan Bhaiyya was killed in police encounter at Nana-Nani Park, Versova, Mumbai. In the meanwhile, Smt. Aruna the wife of Anil Bheda at 6.40 p.m. on 11.11.2006 lodged complaint regarding her husband being missing which was registered in Adult Missing Register as No.51 of 2006. 5 The complainant has stated that thereafter, he sent communication to the Commissioner of Police Mumbai on 14.11.2006 stating that his brother Ramnarayan did not die but he was murdered by 4 cr-wp-2472-10 the police and he requested the Commissioner of Police to register an offence of murder against the police. However, as no action was taken by the police, he filed Cri. Writ Petition No. 2473 of 2006 on 15.11.2006 praying therein for directions to register an offence of murder in relation to death of his brother. He also prayed that investigation in the said case, be handed over to C.B.I. The matter was heard from time to time by this Court. Thereafter, directions were issued by this Court that offence of murder be registered on 13.8.2009. Thereafter, FIR came to be registered on 20.8.2009 vide CR No. 246 of 2009 of Versova Police Station, Mumbai. Thereafter, the investigation commenced. 6 During the course of investigation, statements of various witnesses came to be recorded including that of Younus Shaikh, Amit Patel and Subhash Patel. The statement of Younus Shaikh shows that there were some dealings between the deceased Ramnarayan and the present petitioner. These dealings pertained to land. The deceased came to know that the petitioner was cheating him in the dealings and thus gaining profit of crores of rupees. This fact was informed by the deceased to Younus Shaikh. On account of being cheated, the deceased was enraged and he went to the house of the petitioner. He pointed out a pistol at the head of the petitioner and abused him and also threatened to murder both the sons of the petitioner. This witness 5 cr-wp-2472-10 told the deceased to go and apologize to the petitioner. However, the deceased stated that the petitioner would never forget this fact and would finish him, hence, he refused to go to the house of petitioner. 7 Witness Younus Shaikh further stated that he met Amit Patel and while they were having drinks, he told Amit Patel that he suspected that the petitioner was responsible for the encounter of Lakhan Bhaiyya. At that time, Amit Patel informed him that he was also aware of the fact and that just before the encounter of Lakhan Bhaiyya, the police made Lakhan Bhaiyya talk to the present petitioner on the phone. At that time, the petitioner asked Lakhan Bhaiyya “Aata Kase Vatate? ” (How do you feel now?). 8 Witness Amit Patel has stated that one day when the petitioner was going to his Guru, he met this witness. During their talks, the topic of Lakhan Bhaiyya cropped up. At that time, the petitioner gave abuses and stated that “Mere Ko Marane Nikla Tha, Usako Barabar Uthava Diya! ”(He was going to kill me, I have properly lifted him i.e. killed him.) The petitioner also informed him that before his encounter, when Lakhan Bhaiyya was in custody of the police, the police made Lakhan talk on the phone to the petitioner. At that time, the petitioner told Lakhan “Abhi Kaise Lagata Hai? Mereko Marne Chala Tha ” (How are you feeling now, you were going to kill me). This witness has stated 6 cr-wp-2472-10 that he had conversation on this aspect with Younus. 9 Witness Subhash has stated that he knew that there was some dispute between the petitioner and Lakhan Bhaiyya. This witness has stated that he went along with accused no.4 Pinki @ Shailendra to the house of the petitioner. At that time, the petitioner told him that he got residential address of Lakhan and this witness and Pinki were responsible for the further work. The petitioner also informed that his relation Santosh will show them the residential house of Lakhan. Accordingly, said Santosh showed them the house where Lakhan was residing along with his friend Anil. 10 The learned counsel for the petitioner submitted that the dispute was in relation to the property of one Anandibai. However, no documents have been collected by the prosecution during the investigation to show that there was any dispute in relation to this property between the petitioner and the deceased or that there was any such property in existence. As far as this contention is concerned, it is seen that the dispute was not only in relation to the property of Anandibai but dispute was also in connection with properties situated at Dahanu and elsewhere. As there was only dispute in relation to the properties and no transaction had taken place in relation to the said properties or talks in relation to the properties had not culminated in an 7 cr-wp-2472-10 agreement, in such case, it would not be expected that there would be any documents to show this dispute. 11 The learned counsel for the petitioner thereafter submitted that the petitioner is suffering from paralysis which is an admitted fact and hence, it would not have been possible for the petitioner to travel to Ahmedabad and meet Amit Patel. He pointed out that Amit Patel resides at Ahmedabad and Amit Patel has stated that when the petitioner was going to his Guru, the petitioner met him. As far as this contention is concerned, even assuming that the petitioner had paralysis prior to the incident, it was possible for him to move as the various and latest modes of transportation make it possible for a person to travel easily from one place to another, hence, it cannot be said that it was not possible for the petitioner to travel anywhere. 12 As far as the contention regarding the FIR being registered belatedly and the statements of witnesses being recorded belatedly is concerned, it is seen that only after Writ Petition No. 2473 of 2006 came to be filed by the complainant in this Court on 15.11.2006 which was heard from time to time and on 13.8.2009 pursuant to the directions given by this Court, FIR came to be registered and thereafter the investigating machinery swung into action. Hence, the fact that there was delay in lodging FIR or recording statements of witnesses would not 8 cr-wp-2472-10 be of much consequence. It is also pertinent to note that there are many police officers who are accused in this case and hence, the investigating machinery appears to have dragged its feet while registering the FIR and investigating the case. 13 Lastly, the learned counsel for the petitioner submitted that there is no material to show that the petitioner was engaged in conspiracy along with other accused to do away with Lakhan. As far as this aspect is concerned, the statement of Subhash Patel shows that he knew that there was dispute between the petitioner and the deceased, hence, he along with accused no.4 Pinki @ Shaildendra met the petitioner and told him to give the work of Lakhan Bhaiyya to Sharma Saheb (accused no.1). This witness has stated that 8 to 10 days thereafter, Pinki went to the house of the petitioner and he made the petitioner, have a talk with Pradeep Sharma (accused no.1). It is to be noted that accused no.1 Pradeep Sharma is a police officer who is responsible for many encounters. The statement of Anil Bheda shows that on 11.11.2006 when he was taken away along with the deceased by the police officers, they were taken to D.N.Nagar Police Station. When they were taken to the police station, he saw encounter specialist Pradeep Sharma (accused no.1) there. Lakhan Bhaiyya was taken to a room in the police station and accused no.1 followed him to the said 9 cr-wp-2472-10 room. After some time Anil was also taken to the said room. On entering the said room, he saw Lakhan sitting in one corner of the room and accused no.1 was standing in front of him. Next day morning, Anil Bheda learnt that Lakhan was killed in an encounter. 14 As far as participation of the petitioner in the incident is concerned, it is seen that the petitioner has been roped in in the present case with the aid of Section 120-B of IPC. For Section 120-B of IPC, it is not necessary that the accused person should be present on the spot. Normally as far as conspiracy is concerned, there is no direct evidence and it has to be inferred from the circumstances. In the present case, looking to the statements of Anil Bheda, Subhash Patel, Younus Shaikh and Amit Patel, prima facie it can be said that the petitioner is involved in a conspiracy along with some other accused to do away with Lakhan Bhaiyya, hence, no case is made out for quashing of the FIR and proceedings relating thereto. Petition rejected. 15 It is made clear that the learned Sessions Judge shall not be influenced by any observations made in this order while dealing with the application for bail or conducting the trial. [ SMT. V.K.TAHILRAMANI, J.] 10 cr-wp-2472-10