1 Appeal Nos.422/04, 15/04 & 207/04 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO.422 OF 2004 Manjuviranna Kantayya Rai ] Age 22 years, residing at Ajivali, ] Tal.Panvel, District Thane ] ... Appellant At present in Kolhapur Central Jail, Kolhapur] (Org.Accused No.2) versus The State of Maharashtra ] ... Respondent. ALONG WITH APPEAL NO.15 OF 2004 Sunil Motiram Katke, ] Age 33 years, Occ : residing at Navjeevan, ] Society, A/17, Room No.1 and 2, ] ... Appellant Sector 15, Airoli, Navi Mumbai ] (org.Accused No.4.) versus The State of Maharashtra ] ... Respondent. ALONG WITH APPEAL NO.207 OF 2004 The State of Maharashtra ] ... Appellant. versus 1. Paresh Bhanjibhai Nanda @ Bhanushali ] Age about 43 yrs. Occ : Business ] R/at Ghatkopar, Mumbai ] ] 2. Vinod @ Ajay Narsingh Sahu ] Age about 22 yrs. , R/o Ajivali ] ... Respondents Tal. Panvel, Dist.Raigad ] (Org.Accused Nos.1 & 3) 2 Appeal Nos.422/04, 15/04 & 207/04 Mr.Niranjan Mundargi for the Appellant in Appeal No.422/04. Mr.P D Pise for the Appellant in Appeal No.15/04. Mr.Shekhar A Ingawale i/by Mr. Ashoka Law Firm for Respondent No.1 in Appeal No.207/04. None present for the Respondent No.2 thought served in Appeal No.207/04. Ms. S V Gajare, APP, for the State Respondents in Appeal Nos.422/04 & 15/04 and for the Appellant in Appeal No.207/04. CORAM : NARESH H PATIL & MRS.MRIDULA R BHATKAR, JJ DATE : 07th JULY 2011 JUDGMENT : [PER NARESH H PATIL, J] 1 The State had prosecuted four accused persons for committing offence punishable under Sections 302, 307, 120(b), 34 of the Indian Penal Code r/w Sections 3(25)(b)(a) and 27 of the Arms Act respectively. 2 The accused were tried in Sessions Case No.178 of 2003 and Sessions Case No.214 of 2003. The trial Court convicted Original Accused No.2 Manju Viranna Kantayya Rai for an offence punishable under section 302, 120(b) of the Indian Penal Code and sentenced to undergo life imprisonment and to pay fine. He was also convicted for an offence punishable under Sections 3, 25, and 27 of the Indian Arms Act and sentenced to undergo R.I. For five years and to pay fine. Both the sentences were directed to be run concurrently. Original Accused No.4 Sunil Motiram Katke was convicted under Section 302 and 120(b) of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine. 3 Appeal Nos.422/04, 15/04 & 207/04 Original Accused Nos. 1 Paresh Bhanjibhai Nanda @ Bhanushali and Original Accused No.3 Vindo @ Ajay Narsingh Sahu were acquitted for the offences punishable under Sections 302 and 120(b) of the Indian Penal Code by giving benefit of doubt. 3 The prosecution case in substance is as under :- Original Accused No.4 Sunil Katke was serving in Agricultural Produce Market Committee office Navi Mumbai as a wireman. He was under suspension at the relevant time when the incident in question took place as he did not discharge his duty properly. Original Accused No.1 Paresh Nanda @ Bhanushali was working as a clearing agent of APMC Market at the relevant time. Deceased Tambhale was the then secretary of APMC, Navi Mumbai, at the relevant time. The prosecution alleges that Accused No.1 an octroi agent of the APMC market had allowed vehicles to pass through the naka without paying any charges/tax at the check post of APMC market. Due to this reason, he developed grudge against deceased Tambhale. The prosecution alleged that Accused No.1 was in search of an opportunity to teach lesson to the deceased and accordingly he joined hands with Accused No.4. It is the prosecution case that original Accused Nos.1 and 4 conspired to cause bodily harm to the deceased and to commit his murder. They took help of Original Accused No.2 Manjuviranna Rai who shot dead deceased Tambhale on 24.12.2002. It is the case of the prosecution that all these accused conspired together to kill Tambhale and in furtherance of conspiracy they engaged service of Accused No.2 to kill the deceased. 4 Appeal Nos.422/04, 15/04 & 207/04 4 Investigating machinery swung into action on a complaint filed by Santosh Bansiram Kamble on 24/12/2002 in APMC police station Navi Mumbai, Dist.Thane which was registered under C R No.I 163/2002 under Sections 302, 307 of the Indian Penal Code and Sections 3, 25, and 27 of the Arms Act. 5 According to the complainant on 24/12/2002 at about 7.00 am the complainant was present on the main gate of the office of APMC being on duty as a security guard. At about 11.00 am the secretary of APMC deceased Tambhale got down from his car, the driver and one of the employees of APMC namely Acharya were sitting in the car, the deceased after getting down of his car proceeded to his office, complainant Santosh was taking a bag which was in the hand of the secretary. At the same time he heard sound of firing, therefore he turned back and noticed one person was firing on deceased Tambhale. He saw deceased Tambhale fell down on the ground in pool of blood. He saw the said assailant running away. The complainant started chasing him, he saw that the assailant crossed the gate and went towards Mafco market and when the assailant saw that somebody was chasing him, he turned back and fired two shots from his pistol towards the complainant. The complainant was frightened. He stopped chasing the assailant and taking benefit of the same, the assailant vanished from the spot. The complainant returned to the spot. He saw that other staff members were gathered there. Medical Officer of APMC hospital namely Dr.Ghadge had reached there. He examined Tambhale and declared him dead. 5 Appeal Nos.422/04, 15/04 & 207/04 6 The police officer reached the spot. An offence was registered accordingly. The dead body was sent for post mortem to NMMC hospital Vashi Navi Mumbai. Investigating officer called two panchas and conducted spot panchanama (Exhibit 94). He seized one empty cartridge and one lead shot bullet and one Nokia mobile cell. He collected blood sample found on the floor. He conducted panchanama of place where the assailant fired on the complainant. He seized there from one empty cartridge. He kept both the empty cartridges and lead shot bullet in a bottle and sealed it. 7 The investigating officer on 27/12/2002 recorded statements of prosecution witnesses. On 28/12/2002 Accused No.1 Paresh Bhanusahali was arrested. Statements of Deputy Secretary of APMC was recorded. The investigating officer in furtherance of his investigation received information that Accused Nos.2 and 3 were residing in Ajiwali, Tal. Panvel, Dist.Raigad. They reached the said place, raided their room, arrested them and seized one revolver and 4 live cartridges and some documents concerning APMC in connection with suspension of Accused No.4 Sunil Katke. Accused Nos.2 and 3 were arrested on 4/1/2003. P C remand was obtained when they were produced before the Magistrate. Clothes of accused No.2 were recovered from his village Ajivali. At his behest, the investigating officer collected papers in connection with suspension of Sunil Katke from AMPC office. P M Notes were collected. Articles seized including the clothes of accused No.2 as well as the revolver and cartridges recovered from him sent to CA and ballistics expert. The CA and Ballistics Expert Reports are at Exhibit Nos.71, 72 and 74 to 76 respectively. Investigating officer 6 Appeal Nos.422/04, 15/04 & 207/04 obtained sanction to file charge sheet under Arms Act against Accused No.2 Manju vide Order Exhibit 105 and after completion of investigation on 27/03/2003 a charge-sheet vide No.29/2003 came to be filed against Accused Nos.1 to 3 and absconding Accused Sunil Katke. On 24/4/2003 the police reached the premises where Accused No.4 Sunil Katke was said to be residing, arrested him and seized from him, identity card, pass port and receipt of pay and park. His PCR was obtained and accordingly supplementary charge-sheet against Accused No.4 was filed in the Court of JMFC at Vashi. All the accused pleaded not guilty to the crime and they claimed to be tried. 8 The prosecution as per Section 294 of the Criminal Procedure Code called upon the defence to admit or deny some documents. All the accused had engaged their respective advocates who had admitted said documents. The trial Court had drawn a list of the 47 such documents. 9 The prosecution to establish charge of conspiracy had examined PW. Nos.2, 6 and 9. P.W. No.1 Santosh Bansiram Kamble, who is the complainant, was working as a guard in the office of APMC Vashi Navi Mumbai at the relevant time. He deposed before Court that when Tambhale reached his office and he was about to take his bag, he heard sound of firing, he turned back and saw that Tambhale was shot at and one person was running from the spot. He identified Accused No.2 as the said person. He chased him and tried to catch hold of him but since Accused No.2 fired two shots at him from his pistol, he dropped his efforts to catch hold of Accused No.2. According to this witness, Accused No.4 7 Appeal Nos.422/04, 15/04 & 207/04 Katke was serving as wireman in APMC market and at the relevant time he was under suspension. PW No.1 identified the revolver Article No.11. He admitted that the person who had fired at Tambhale was seen by him for the first time. The witness claims that said assailant was wearing white coloured shirt of verticle linings. He was of fair complexion. Test identification parade was arranged by police on 30/1/2003. Witness identified Accused No.2. 10 P.W. No.2 is Sachin Balrkishna Gaikwad. At the relevant time, he was running hotel on rent known as Mast Bar. He deposed that Accused No.2 came to him in his hotel and requested him to engage him in his hotel as a Stewart. Accused No.2 started working in the hotel as a waiter. After some time witness closed his hotel business and started new business of selling fish. Some time in the month of July 2002, Accused No.2 along with one Sunil met this witness Sachin. Thereafter they went to room of Accused No.2. Witness deposed that Accused Nos. 2 and 4 used to come to meet him intermittently after 4-5 days. One day he received mobile call given on his cell phone. Accused No.2 was the caller who called him at his room situated at Koparkhairne. Accordingly PW 2 went there. Accused No.4 was present who disclosed that he was removed from services of APMC market Vashi. Accused No.2 was also there. During the course of discussion, Accused No.4 told the witness that he was going to kill Tambhale. PW No.2 further deposed that he was asked to accompany Accused No.4 but the witness refused to participate object and he returned home. Again after one month, Accused No.4 had talks with him. He informed the witness that he had already received a gun and asked the witness whether he was joining 8 Appeal Nos.422/04, 15/04 & 207/04 them in the operation of killing Tambhale. PW No.2 stated that after 4-5 days, he learnt through a news paper that Tambhale was killed in the premises of APMC market Vashi as someone had shot at him. PW No.2 identified Accused Nos.2 and 4 in the Court. His statement under Section 164 of the Criminal Procedure Code was recorded by the JMFC Vashi. This witness proved the contents of his statement (Exhibit 15). In the cross examination PW No.2 clearly deposed that he had not personally seen the weapon which was used in commission of offence. An omission is recorded in his evidence to the effect that he did not state before police or JMFC Vashi while recording his statements that Accused Nos.2 and 4 informed that they had acquired a gun. The witness did not inform the police in respect of the conspiracy. 11 PW No.4 is Arvind Eknath Dalvi, who was at the relevant time in the service of BSS company as a security guard. This witness was declared hostile by the prosecution. Statement of this witness under Section 164 of the Criminal Procedure Code was recorded. 12 PW No.6 Narayan Nayak, who was serving as a Stewart in hotel Athithi Bar, Sanpad, deposed before Court that Accused No.2 was also working with him as a waiter and he was removed from the service due to his misbehaviour. The witness was also removed from the services of Hotel Athithi. PW No.6 thereafter started working in hotel Mast Bar. He worked there for about 15-20 days and then left the services. He thereafter started going to Sandeep hotel where he met Santosh the manager of the said hotel. He even met with 9 Appeal Nos.422/04, 15/04 & 207/04 Accused No.4 Katke who used to come there to drink liquor. According to this witness, Accused No.4 one day called him near Soniya Bar. He took him to Sandeep Bar and disclosed him that there is one person by name Tambhale who had removed him from the services and he wanted to cut his hands and legs. According to PW No.6, Accused No.2 was present at that time. They consumed liquor. But PW No.6 refused to accept proposal of Accused No.4 to participate in the plan. Again after 4-5 days, Accused Nos.4 met him. He took him to a place where Accused Nos.2 and 3 were already present. They again had talks and discussion. Accused No.4 disclosed his intention and plan that he was going to cut the limbs of Tambhale and kill him as they acquired a pistol. After coming to know of the plan, PW No.6 did not meet Accused Nos.2 and 4. Later on he came to know that Tambhale was murdered. He suspected that Accused N0.4 was planning to kill Tambhale and he might have killed him by Accused No.4. Statement of this witness under Section 164 of the Criminal Procedure Code was recorded. In his cross examination this witness deposed that he did not disclose the discussion and plan to his master as he did not feel it necessary to tell this fact to his master. The witness could not give the exact date and place where he met Accused No.4. 13 P.W.No.9 was also examined by the prosecution to establish the charge of conspiracy. The counsel appearing for the Accused submitted that the trial Court has not believed the evidence of PW No.9. PW No.9 was residing in Sector 15, Navjivan Society Airoli Navi Mumbai. There are material omissions in the evidence of this witness in respect of the statements recorded by the police 10 Appeal Nos.422/04, 15/04 & 207/04 and JMFC on the subject of Accused Nos.1 and 4 planning to murder Tambhale. 14 PW No.5 Rajendra Mahadappa Tikekar – Police Constable, who was working in the office of ACP, Crime Vashi Navi Mumbai deposed before Court that while he was sitting in the office he saw through his window one person running away from the gate of market. He identified the said person as Accused No.2 in the Court. This witness identified the accused in Central Prison Thane in Test Identification Parade. This witness informed on telephone APMC Police Station but he did not go to lodge complaint. It is true that his statement was recorded after 10 days of the incident. 15 PW No.7 is Manji Valji Bhanushali. He was engaged in the business of stitching gunny bags in Mafco Market APMC, Vashi. At the relevant time and date he saw one person running away from the road leading to vegetable market from Mafco Market, he was having one revolver in his hand and one watchman of APMC was chasing him and trying to catch hold of him. This witness identified Accused No.2 to be the same person who was running armed with a revolver. He identified Accused No.2 in Central Prison Thane. 16 PW No.8 is Dr.Bhushan Vilasrao Jain, who conducted autopsy of the corpse. The doctor noticed following injuries on the person of deceased :- 1 Firearm wound of entry over Rt. Forehead 3 cm about lateral 1/3 of Rt. Eye brow and 6 cm lateral to 11 Appeal Nos.422/04, 15/04 & 207/04 midline of size 0.8 cm, in diameter with 0.2 cm circular aberaded coller margins inverted. No evidence of tattooing blackening, signing. 2 Firearm wound of exist over Rt. occipital region 9 cm from rt. mastoid and 5 cm. lateral to midline of size 1.2 cm everted margins, active bleeding, brain tissue pointing out. No evidence of Ad-coller singing, blackening, tattooing. Brack – skin, subcutaneous tissue, periosteum outer and inner table of skull inverted inside the skull cavity, dure and arachnoid matter, right frontal lobe of brain passing posteriorly in saggital plane-occipital lobe of brain, arachnoid and dura matter, inner and outer table of skull bone everted towards the scalp and scalp. Blood tissue around the track shows evidence of blood infiltration. All injuries were ante mortem, according to the doctor. The cause of death was shock and haemorrhage due to fire arm injuries. Accordingly the doctor prepared PM Notes (Exhibit 31). The doctor deposed before court that the death of deceased is possible by a weapon like Article No.11 which was shown to the doctor in Court. 12 Appeal Nos.422/04, 15/04 & 207/04 17 PW No.10 is Ramesh Namdeo Malusare acted as a pancha. When the police raided the premises of Accused Nos. 2 and 3, they recovered certain news papers concerning APMC and two bags. They seized one revolver Article 11 and two empty and two live cartridges Article 12. All the articles were sealed in presence of pancha. This witness proved the contents of Panchanama (Exhibit 38). 18 PW No.11 is Bhaskar Bhaban Khute who was in service of APMC since 2002 as a Deputy Secretary. He supported the prosecution case. He identified Accused Nos.1 and 4 before Court. 19 P.W.No.12 is Ramesh Babu Rao. He acted as pancha in respect of discovery panchanama regarding clothes of Accused No.2 were seized under panchanama. The Panchanama (Exhibit 41) is accordingly proved. 20 PW No.13 Deelip Rangrao Nalwade is the Investigating Officer. He was at the relevant time having Additional charge of APMC Police Station Vashi Navi Mumbai. He recorded FIR given by Santosh Kamble (Exhibit 13). This witness deposed before court that he conducted spot panchanama (Exhibit 94). While conducting the spot panchanama he seized one empty cartridge and one lead shot bullet and one nokia mobile cell phone from the spot where the dead body was lying. He also conducted spot panchanama where Accused No.2 had fired at the complainant. He seized one empty cartridge fired against the complainant. He sealed them and sent them to ballistics expert. Accordingly 13 Appeal Nos.422/04, 15/04 & 207/04 panchanama was drawn. 21 PW 14 is Ashok Vankatroa Gaikwad, Senior PI, who narrated detail progress of the investigation, the documents relating to suspension of Accused No.4, various documents from the office record of APMC including copy of minutes of meeting. He has proved statements recorded under Section 164 of the Criminal Procedure Code. He had also proved CA reports (Exhibits 71 and 72) and ballistics reports (Exhibits 75 to 76) . The defence had cross examined this witness accordingly. 22 Mr.Niranjan Mundargi, the learned counsel appearing for Original Accused No.2 submitted that Accused No.2 is falsely implicated in this crime. He was not the assailant neither he had used fire arm to shoot at deceased Tambhale. He had no enmity with deceased Tambhale. Neither there was any motive to kill deceased. The prosecution has failed to establish any connectivity between the offence and Accused No.2. The learned counsel submitted that the description of the assailant as given by the prosecution witnesses does not match with the actual appearance of Accused No.2. The colour of the shirt also does not match as described by the witnesses. According to the witnesses, the assailant, after firing, ran away, this itself demonstrate that there was no chance of PW No.1, or PW Nos. 5 and 7 to see and identify Accused No.2. The identification parades held do not inspire confidence as persons having dark complexion were standing in the identification parades which helped the prosecution witnesses to identify Accused No.2 as he is a person of fair 14 Appeal Nos.422/04, 15/04 & 207/04 complexion. On the issue of conspiracy the learned counsel for Accused No.2 submitted that the evidence of witnesses i.e. PW Nos. 4 and 9 is not supporting the prosecution case. The prosecution ought to have provided required details in respect of the conspiracy allegedly hatched by Accused No.2 along with other accused persons. In absence thereof the charge of conspiracy shall fail against accused persons. While commenting upon Test Identification Parades, the learned counsel submitted that the person who was acted as panch in respect of recovery under Section 27 was utilized for the purpose of Test Identification Parade. The prosecution failed to take required precaution in this case. Lastly it was submitted by the learned counsel for Accused No.2 that for want of sanction under Section 39 of the Arms Act, the charge under Arms Acts shall also fail. 23 Mr.P D Pise, the learned counsel appearing for Original Accused No. 4 submitted that the PW No.4 turned hostile and PW No.9 was disbelieved by the trial Court. The prosecution has failed to establish charge of conspiracy against Accused No.4. He submitted that Accused No.4 was never suspended, therefore, there was no motive for Accused No.4 to cause any bodily harm to deceased Tambhale. He submitted that PW No.2 has criminal background, therefore, the police utilized his services. The learned counsel for Accused No.4 submitted that the prosecution has failed to prove that Accused No.4 was really suspended from the service of APMC and, therefore, there was no intention on the part of Accused No.4 to commit crime neither there was any reason to commit such serious offence. He submitted that there was no proof of conspiracy. According to the learned counsel, the prosecution ought to have led evidence in respect of 15 Appeal Nos.422/04, 15/04 & 207/04 details of accused persons hatching conspiracy which is lacking in this case. 24 Mr.Shekhar A Ingawale, the learned counsel appearing for the acquitted Accused No.1, submitted that the trial Court has properly appreciated the evidence and acquitted Accused No.1. Accused No.1 had not taken any active part in commission of offence. The learned counsel submitted that there was delay in recording statements of material witnesses, therefore, the prosecution case cannot be believed against Accused No.1. He submitted that Accused No.1 had no personal enmity with deceased Tambhale. He submitted that there was no reason for Accused No.1 to help Accused No.4 in conspiracy to kill Tambhale. He submitted that PW Nos. 2 and 9 have criminal background, therefore, their evidence is required to be scrutinized with great care and caution. He lastly submitted that in the light of material omissions and contradictions occurring in the prosecution case, the view adopted by the trial Court in acquitting Accused No.1 is a possible view and, therefore the order of acquittal of the trial court is required to be confirmed by this Court. 25 Ms Gajare, the learned APP appearing for the State submitted that the prosecution had investigated this case promptly and had led credible evidence against the accused persons on the issue of conspiracy. The prosecution witness Nos.2 and 6 are most reliable witnesses. On the issue of actual assault, the learned APP placed reliance on the evidence of PW Nos.1 and 5. He submitted that the evidence of these witnesses is not shaken. They are independent witnesses. They have no grudge against the accused persons. Their 16 Appeal Nos.422/04, 15/04 & 207/04 presence at the scene of offence was natural. She submitted that there is sufficient material on record to show that Accused No.4 Sunil Katke was suspended from the service of APMC for his misbehaviour, and therefore, he conspired with other accused