1 Appeals595.02+3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 595 OF 2002 Ramesh Rajmal Jain ... Appellant/Ori. Accused No.11 v/s The State of Maharashtra ... Respondent ALONG WITH CRIMINAL APPEAL NO. 647 OF 2002 Mangilal Modilal Dave ... Appellant/Ori. Accused No.12 v/s The State of Maharashtra ... Respondent ALONG WITH CRIMINAL APPEAL NO. 908 OF 2002 Namdeo Sardar Shinde ... Appellant/Ori. Accused No.2. v/s The State of Maharashtra ... Respondent ALONG WITH CRIMINAL APPEAL NO. 998 OF 2002 Sahebrao Gulab Kale ... Appellant/Ori. Accused No.1 V/s The State of Maharashtra ... Respondent Mr.Ganesh Gole, Advocate for the appellant in Criminal Appeal Nos.908 of 2002 and 998 of 2002. 2 Appeals595.02+3 Mr.I.A.Bagaria, Advocate for the appellant in Criminal Appeal No.595 of 2002. Mrs.Anjali Patil, Advocate for the appellant in Criminal Appeal No.647 of 2002. Mr.H.J.Dedhia, A.P.P. for the State. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON : March 18, 2011 PRONOUNCED ON : April 15, 2011 JUDGMENT (Per B. H. Marlapalle, J.): 1. These appeals filed under Section 374 of Criminal Procedure Code arise from the common judgment and order of conviction and sentence passed by the learned Additional Sessions Judge for Greater Mumbai, in Sessions Case Nos. 189 of 1998, 570 of 1998, 1393 of 1998, and 328 of 2000. In all 16 accused came to be tried and accused Nos.1 to 9 and 13 to 16 were charged under Sections 396 of the Indian Penal Code i.e. decoity with murder and accused No.11 was charged under Section 412 of the Indian Penal Code (in short, “I.P.C.”) i.e. dishonestly receiving property stolen in the commission of a decoity by accused No.1 and accused No.12 was charged under Section 414 of the Indian Penal Code for voluntarily assisting the accused in disposing off the 3 Appeals595.02+3 stolen property in decoity. Accused No.10 Balaram Shinde was also alleged to be a member of the decoity gang but though arrested, he subsequently absconded. Hence, the trial continued against the remaining 15 accused. Accused Nos.1, 2, 5, 6, 8, 9, 13 to 16 remained as under-trial prisoners, whereas the other accused were released on bail. By the impugned order, accused Nos.1, 2 and 3 have been convicted and sentenced for life and to pay a fine of Rs.2000/- for the offence punishable under Section 396 of I.P.C. Accused No.11 has been convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.30,000/- for the offence punishable under Section 412 of I.P.C., whereas accused No.12 has been convicted and sentenced to suffer R.I. for two years and to pay a fine of Rs.25,000/- for the offence punishable under Section 414 of I.P.C. Criminal Appeal No.592 of 2002 has been filed by accused No.11, Criminal Appeal No.647 of 2002 has been filed by accused No.12, Criminal Appeal No.908 of 2002 has been filed by accused No.2 and Criminal Appeal No.998 of 2002 has been filed by accused No.1. Convicted accused No.3 has not filed any appeal. Accused Nos.11 and 12 have been released on bail by this Court but other convicted accused i.e. accused Nos.1 to 3 are presently in jail. Accused Nos.1 and 2 are in jail right from 5.11.1997 uninterruptedly, whereas accused No.3 is in jail after his surrender consequent to the impugned 4 Appeals595.02+3 order of conviction and sentence. Thus accused Nos.1 and 2 have by now completed an actual sentence of more than 13 years, whereas accused No.3 has completed an actual sentence of about 9 years. 2. As per the prosecution case, PW-3 Dattatray Maruti Thopte who was the Station House Officer at the Malad Police Station in the suburb of Mumbai City had received an anonymous telephone call around 2.20 a.m. on 4.11.1997 (fateful night between 3rd and 4th of November, 1997) stating that three persons were lying with bleeding injuries in the compound of Pawanbaug Housing Society, Chincholi Phatak and near its gate. After recording the said message in the station diary he informed it to PW-19 Shri Katakdaund, Police Inspector and proceeded to the spot immediately for further enquiry. On reaching the spot he found the news to be correct and three persons were lying near the main entrance gate of Pawanbaug Housing Society in a pool of blood and a motorcycle was also lying at the site. PW-3 identified two police constables Ravindra Savant and Anant Arjun Kalal, who were on patrol duty on the same night as the injured and the third one was the watchman of the Pawanbaug Housing Society by name Ravindra Dubey. Within a short span of time, a mobile van of Malad Police Station reached the spot and all the three injured were 5 Appeals595.02+3 shifted to Bhagwati Hospital. By then a crowd had gathered at the spot and PW-1 Vishvanathan Pille, an occupant of the ground floor flat assisted PW-3, who, in the local enquiry found that Flat No.303/304 on the third floor of building No.9 of the said Society was burgled. PW-3 suspected that the commission of house breaking and looting of valuables from the said flat must be by a gang of decoits. PW-19 Katakdaund, Police Inspector also reached the spot. In the meantime, a wireless message was received from Bhagwati Hospital that all the three victims taken in the police mobile van were declared dead before admission. PW-19 Katakdaund therefore recorded the statement of PW-3 Dattatray Thopte and C.R.No.539 of 1997 for the offences punishable under Sections 396 and 357 of I.P.C. came to be registered against unknown persons on the basis of the said complaint. 3. The dead bodies of all the three victims were sent for postmortem after preparing the inquest panchnama at Exh. 57. Dog squad and finger print experts were also called and PW-19 Katakdaund undertook the investigation. At the same time, PW-20 Arun Vitthalrao Wable, who was the night duty police inspector at Santacruz Police Station flashed the incident and red alert was given to all the police stations. He received a wireless message by about 4.00 a.m. that the 6 Appeals595.02+3 decoits were suspected to be from the “Phasepardhi” community. The statement of PW-6 Chandrabahadur Chudabahadurrao, who was the watchman of the neighbouring industrial unit i.e. Shripal Industries was recorded by PW-19 immediately after the incident. Postmortem was performed on the dead bodies by PW-15 Dr.Vithal Hasha Vihurkar on 4.11.1997 and it was revealed that all the three persons died on account of head injuries at one and the same time. PW-1 Vishwanathan Narayan Pille led the police team to Flat No.303/304 on the third floor of building No.9 and it was noted that the occupants Jain family were out of station and an urgent message was given to them. The tube-lights in the flat were found switched on, two steel cupboards were found broken, clothes and jewellery boxes were were ransacked and panchnama at Exh.20 was drawn of the conditions of the flat. The Jain family reached Mumbai on 5.11.1997. As per PW-6, he had seen a gang of 15 to 16 persons coming from Pawanbaug Society and armed with sticks and iron bars and running away around 2.00 a.m. but he had not seen the actual incident in which three victims were killed in the compound of Pawanbaug Housing Society, past midnight of 3rd April, 1997. 4. PW-11 Dattatray Yeshwant Dal was the Police Sub- Inspector attached to the Santacruz Police Station and he 7 Appeals595.02+3 had received secret information from the modus operandi that some of the accused involved in the incident had taken shelter in Kalachowki, Cottongreen area, and he caught hold of accused No.3 Subbarao at about 4.00 a.m. on 5.11.1997 from a lorry parked along the road side. Within half an hour and on the basis of the information obtained from accused No.3, PW-11 caught hold of accused No.1 Sahebrao Gulab Kale who was found sleeping on the footpath in the nearby area and accused No.4 Suresh Pawar, on the tip off. PW-11 Dattatray Dal took in custody accused No.2 Namdeo Shinde at about 7.30 a.m. from Jogeshwari and his auto-riksha which was allegedly used in the commission of the crime was also seized. Accused No.5 Rajendra Bappa Pawar was arrested on 10.11.1997, whereas accused Nos.6 and 7 were arrested by PW-19 Katakdaund from the area of Vakdipidi, Tal. Kalamb, in Osmanabad District on 13.11.1997 along with accused Nos.8 and 9. Accused Nos.11 and 12 were arrested on 7.12.1997, accused No.10 was arrested on 13.1.1998, accused No.13 was arrested on 17.4.1998 and accused Nos. 14 and 15 were arrested on 17.9.1998 from Vakdipidi, Tal. Kalamb of Usmanabad District. Initially, the charge-sheet was filed against accused Nos.1 to 9 and subsequently a supplimentary charge-sheet was filed against accused Nos.10 to 16 as they were arrested belatedly. The case being exclusively triable by the Sessions Court, it was committed 8 Appeals595.02+3 and charge at Exh.1 was framed on 23.2.2001. 5. The prosecution examined in all 20 witnesses and claimed PW-1 Vishwanathan Pille as the eye-witness. It relied upon the recoveries of jewellery, household items, iron rods as well as the bloodstained clothes from the person of accused Nos.6 to 9. PW-2 Hasmukh Kataria, PW-5 Vijay Sakhare, PW-7 Fulchand Kesharwani, PW-8 Prabhakar Patil, PW-9 Chandrakant Savant, PW-10 Nagesh Rao, PW-12 Prabhakar Shivgan, PW-13 Shashikant Kadu, PW-14 Ramesh Gaonkar and PW-16 Pramod Patil, were the panch witnesses. PW-15 Dr.Vithal Vihurkar had conducted the postmortem of the dead body of all the three victims on 4.11.1997 between 3.00 to 6.30 p.m. and had signed postmortem notes at Exh.44 (deceased Anant Kalal), Exh.55 (Ravindra Savant) and at Exh. 46 (Rajendraprasad Dubey). PW-3 Dattatray Thopte, PW-11 Dattatray Dal and PW-19 Bapu Katakdaund, P.W.20 Arun Wable were the police officers. 6. PW-18 Vilas Chitale was the Special Executive Officer who had held the T.I. parade on 2.5.1998 in the premises of Arthur Road Jail and at the instance of the Malad Police Station, and PW-17 Navinchandra Vyas was also the Special Executive Officer who had conducted two different T.I. Parades in the Arthur Road Jail premises at the instance of 9 Appeals595.02+3 Malad Police Station. The first T.I. parade was held on 18.12.1997 and the second T.I. parade was held on 9.10.1998. In the T.I. parade held on 18.12.1997, 9 suspects were put in the parade in three different groups (Exhs.52 and 53 respectively). As per PW-18 Vilas Chitale in the T.I. parade held on 2.5.1998, accused No.13 Suresh Shinde was identified by PW-1 Vishwanathan Pille (memorandum Exh. 55). 7. As noted earlier, the prosecution had mainly relied upon the evidence of PW-1 Vishwanathan Pille and PW-6 Chandrabahadur Chudabahadurrao. The Trial Court has not accepted PW-6 as the eye-witness but his evidence to the extent that he saw the gang of 15 to 16 persons duly armed running away from the site of the Pawanbaug Housing Society at about 2.00 a.m. on 4.11.1997, has been accepted. His claim that he identified some of the accused in the T.I. parade does not inspire confidence and merely by saying that he had seen 15 to 16 persons running away, he was not aware of the incident that had taken place earlier in the compound of Pawanbaug Housing Society. The Trial Court has accepted PW-1 as the eye-witness. However, when this group of appeals was heard on 23.11.2010, the Division Bench in its order noted, 10 Appeals595.02+3 “The appellants before us are accused Nos.1, 2 and 11 only. Eye-witnesses are P.W. Nos.1 and 6. Going by the evidence of the said witnesses, prima facie, it is difficult to sustain the finding of guilt against appellants/accused Nos.1, 2 and 11 before us. None of these witnesses have spoken about the involvement of the appellants before us specifically.” 8. During the course of the arguments, commenced before us, the learned P.P. fairly conceded that having regard to the entire testimony of PW-1, he could not be relied upon as an eye-witness. PW-1 Vishwanathan Pille who was the occupant of Room No.3 in Bldg.No.9 and whose room was on the ground floor and close to the gate, has stated that Pawanbaug Society has 11 buildings and it is bounded by a common compound wall with only one gate of entrance and exit. At the relevant time, there was only one night watchman on duty (deceased Dubey), but subsequently seven watchmen came to be employed by the Society. As per him, the incident had taken place between 1.00 and 2.00 a.m. on 4.11.1997 when deceased Dubey was the night watchman. He stated before the Trial Court that in one room he and his wife and in other room of his house his children were sleeping and he heard some disturbances and a voice alarm 11 Appeals595.02+3 “bachav, bachav”. He was woken up and he saw 15 to 16 miscreants in the Society premises at the entrance gate which is 8 to 10 feet away from his room. He had also seen two persons coming on motor bike and stopped at the gate. Watchman Dubey had fallen on the ground due to an assault by the miscreants. Two police men were also thrashed by the gang with bamboo sticks and all the three received bleeding injuries. As per this witness, all the three injured were lying at the distance of about six feet from the window of his house. He was shocked to see the incident and was very much scared as the victims were assaulted with bamboo sticks. He also stated that assailants had used bricks for smashing on the head and faces of the victims. Their faces were badly smashed and the incident lasted for about 10 minutes and thereafter the assailants fled and disappeared. He watched the entire incident from his window and he could see the same in the light posted at the window. It was Diwali time and, therefore, the building premises were illuminated. His house balcony light was off. Within a short time the police reached the spot. One of the police officers used his telephone to contact the Malad Police Station at about 2.30 a.m. and the mobile police van arrived at the spot. The police visited Flat No.303/304 of the Jain family who had gone out of station. On the next day he had left for his native place in Kerala as per his scheduled visit and returned on 23.11.1997 12 Appeals595.02+3 i.e. after 19 days. He went to the Malad Police Station only after his return from Kerala and his statement was recorded. He also stated that he regained courage after taking the Darshan of Lord Ayyappa. He was frightened on the fateful night when he could not gather courage to approach the Malad Police Station before he left for Kerala. It was only after he sought the blessings of Lord Ayyappa that he gained courage and went to the Malad Police Station where his statement was recorded. He claimed that in the T.I. parade held on 18.12.1997 he had identified in all six accused (2 from each group, one accused in the T.I. parade held on 2.5.1998 and two accused in the T.I. parade held on 19.10.1998). It is seen that he identified nine accused. During his substantive evidence before the Trial Court i.e. after a gap of three years, he could identify accused Nos.6, 7 and 14. He admitted in his cross-examination that he left Mumbai around 11.30 a.m. on 4.11.1998 and immediately after the incident when the police arrived at the scene, he had seen the police preparing panchnama and making enquiries. He left the Society premises to go to his nephew’s house at about 2.00 p.m. But he did not go to the police station or tell any one else that he had observed the incident through the window. The explanation provided for the same 13 Appeals595.02+3 was that he was scared and shocked and lacked courage. In his cross-examination, he stated that, “I could not see the entire incident and the scene when I peeped through my window because I saw by peeping through not the entire window but slit of curtain. I did not come out till the miscreants left the compound. I could see entrance area which is in straight line of my window. There is a grill balcony in front of my window. I did not disclose my identity when I contacted Malad Police Station on phone, after I failed to contact control Room 100 when the incident was going on. The balcony is 3 feet wide. My shoe rack is kept in the balcony with shoe pairs. All the accused persons were never seen by him earlier. I cannot see without glasses which I am wearing from the age of 16 years. When I got up I could not see without glasses, my spectacle was on a tea-poy, I wore it and saw the incident.........”. He also admitted in his cross-examination that the police were in the compound of the Society and were conducting enquiry till he left his house and he did not tell any one including the police officers that he had seen the incident. In our opinion, having regard to the depositions of this witness, he cannot be relied upon as an eye-witness because his testimony does not inspire confidence. Though the trial Court has stated that the demonair of this witness made it to accept him as an eye-witness, in our view, it would not be safe to accept that PW-1 had actually noticed or seen the participants in the incident. Even if it is presumed that he had seen the incident either before the police arrived at the scene or he had called the police station after the incident had taken place, nevertheless the testimony of this witness 14 Appeals595.02+3 does not inspire confidence to accept that he had seen the offenders/assailants. 9. Dr. Vithal Hasha Vihurkar was the Medical Officer attached to the Additional Coroner Court, Juhu in November, 1997. He was appointed as a Medical Officer in the year 1977 and thus had about 20 years of experience. He stated before the trial Court that on 4th November, 1997 he performed 3 postmortem examinations at the instance of the Malad Police Station and one after another. He had conducted the postmortem on the dead body of Anand Arjun Kalal (ADR No.133/97) between 4.30 to 5.30 p.m. He had noticed five ante-mortem injuries on the face, head region and neck which were noted by him in Column 17 of the postmortem report at Exhibit 44. All these injuries were CLW and as per him the same must have been caused by hard and blunt weapons. He noticed fracture of skull giving rise to haematoma and hemorrhage in all compartments. He stated that the said injuries proved to be serious and fatal. As per him the said injuries might have been caused by a single blow on the head and it was sufficient to cause death of the person injured in the ordinary course of nature. He opined that Anand Arjun Kalal died a homicidal death. He had collected blood for forwarding the same to C.A. for grouping Weapon similar to iron rod would cause such type of fracture 15 Appeals595.02+3 not only to the head but any part of the body, as per him. Between 3 to 4 p.m. he had also performed the postmortem on the body of Ravindra Manohar Savant and signed the postmortem note at Exhibit 45. He had noticed six ante-mortem injuries on his head, face and shoulder as recorded in column 17 of postmortem notes. He opined that injury No.2 which was CLW on left side forehead, 4 cm. X 1 and half cm., bone deep was sufficient to cause death. There was skull fracture as mentioned in column No.19 of the postmortem note and it resulted in brain hemorrhage. The cause of death was due to head injury. He performed the third postmortem on the body of Rajendraprasad Dubay between 5.30 to 6.30 p.m. He noticed six injuries on his head, face and shoulder and those were incised wounds as mentioned in column 17. Injury No.6 was abrasion to right shoulder and all the injuries were ante- mortem. He further stated that there were three injuries found on head and they were fatal. Corresponding internal injuries in column No.19 were skull fracture and brain haemorrhage due to sharp edged weapon. Injury No.3 was sufficient to cause death of the person. The Doctor further stated that a weapon like iron bar might have been used for the head injury damaging skull bone and resulting into skull 16 Appeals595.02+3 fracture. He had signed the postmortem report at Exhibit 46 and as per him the cause of death was hemorrhage and shock due to multiple injuries. As per the doctor all the three deaths had occurred in a common history of assault and happened at the same time. This evidence of the Medical Officer remained intact and proved that all the three victims i.e. Anant Arjun Kalal, Police Constable, Ravindra Manohar Savant and Rajendraprasad Dubay died a homicidal death on account of the injuries they suffered during the same attack and in the night of 3rd November, 1997 (leading to 4th November, 1997). 10. The defence has not seriously disputed that all the three victims died a homicidal death in the wee hours of 4th November, 1997 and while they were on their assigned duty. It was a brutal attack, obviously, by multiple number of hard and blunt weapons. The attack was so powerful that they died at the spot and in the premises of the Pawanbaug Co- operative Housing Society. Once we have discarded P.W.1 as the eye witness and disagreed with the opinion of the trial Court in that regard, we are required to examine whether the prosecution has proved its case as against accused Nos.1 to 3 in causing the homicidal death of all the three victims and the robbery/dacoity in Flat No.303/304 of Building No.9 and against accused Nos. 11 and 12 for the offences 17 Appeals595.02+3 punishable under Section 412 and 414 of I.P.C., solely on the basis of the circumstantial evidence. In support of its case against the appellants and accused No.3 the prosecution has relied upon the following circumstances:- (a) The arrest of accused Nos. 1 to 4 by P.W.11 Shri Dattatray Yeshwant Dal, Police Inspector (Law & Order). (b) Recovery of silver ornaments and utensils like glasses at the instance of accused No.2 - Namdeo Shinde pursuant to the disclosure statement at Exhibit 29-A and seizure panchnama at Exhibit 29-B drawn on 5th November, 1997 between 14.35 to 15.45 hours. (c) Seizure of silver articles sold by accused No.1 to accused No.12 Shri Mangilal Dave and with the help of accused No.11 Ramesh Jain, as per memorandum of statement at Exhibit 31-A and seizure panchnama at Exhibit 31-B. (d) Identification of some of the seized articles like silver glasses bearing names of the persons gifted to her daughter on 5th November, 1997 in the morning 18 Appeals595.02+3 at the Santacruz Police Station, by PW 4 – Smt. Kirti Jain. (e) Identification of silver ornaments like panjan, toe rings, bracelets of children, silver tooth pick, silver coins with god’s figure at Malad Police Station on 12th November, 1997, by PW 4. (f) Discovery and seizure of one silver glass at the instance of accused No.3 on 12th November, 1997 and as per the discovery statement at Exhibit 26-A and the seizure panchnama at Exhibit 26-B. (g) Discovery and seizure of one iron rod and a cloth bundle with a stone on it as well as one key ring with 3 keys and four empty plastic boxes as per the memorandum of disclosure at Exhibit 33-A and seizure panchnama at Exhibit 33-B. (h) Discovery and seizure of silver ornaments like anklets in large number, silver coins (sikka) with idol impression, silver tooth pick (in all 22 items) from the shop of Amol Jewellers near Santacruz Railway Station on 10th December, 1997 at about