1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 944 OF 2002 IN SESSIONS CASE NO. 1228 OF 1998 1) DINESH LALTAPRASAD YADAV ) aged about 27 years, ) residing at Ram-Shyam Behlpuri ) House, Laxminarayan Niwas, ) Hingwala Lane, Ghatkopar (East), ) Mumbai – 400 077. ) 2) SHANKAR TUKARAM GAJGHAT ) aged about 28 years, ) residing at Building No. 62, ) Room No. 1630, Kannamwar Nagar ) No.2, Vikhroli (East), Mumbai - ) 400 083. ... ... ) (Thane Central Prison) ).. ... Appellants. (Orig.Accused Nos.1 & 2) VERSUS The State of Maharashtra ) (At the instance of Antop Hill ) Police Station, Mumbai) )... ..Respondent. Mr. U. A. Vanjara i/by Mr. M. A. Shaikh for the Appellants. Mrs. V. R. Bhosale, APP for the State. 2 CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. RESERVED ON : 26TH AUGUST, 2008. DELIVERED ON: 24TH SEPTEMBER, 2008. JUDGMENT (Per Bilal Nazki, J.) : This is an appeal filed by the appellants (accused Nos.1 and 2) against the conviction and sentence passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No. 1228 of 1998 convicting accused Nos.1 and 2 under Section 302 r/w Section 34 of the Indian Penal Code and awarding each of them the sentence to suffer imprisonment for life and fine of Rs.1,000/- each, and in default of payment they have to suffer further R. I. for a period of three months. Both these accused were also convicted under Section 25 of the Arms Act and each of them awarded sentence to suffer R. I. for a period of 3 years and a fine of Rs.1,000/- and in default of payment to suffer R.I. for a period of one month. 2. The facts of the case, on the basis of which the prosecution prosecuted the matter are that:- The deceased Ritesh Jayaram Shetty was brother of PW 1 Rakesh Jayaram Shetty. On 24th July, 1998 at about 9.35 p.m. the deceased was standing near his Chinese stall along with his friends. PW 1 was also 3 standing near him. At that time accused No.1 to 3 came from the rear side of the railway track and fired one shot towards Ritesh. Ritesh collapsed on the ground and the accused started running towards railway track. PW 1 and his friend PW 9 started chasing them. While chasing, accused No.2 fell on the railway track. PW 1 who was chasing him also fell over him. By that time PW 9 Madhu came there. PW 1 handed over the apprehended accused No.2 to Madhu and started chasing accused No.1 who was running towards Sion side. While accused No.1 was about to sit in a taxi, Madhu and police staff, who were present there, apprehended him. Both the Accused were brought together and their search was carried and the revolver used in the commission of offence and cartridges were seized from them. Accused No.1 was taken to the police station from the place of offence and was handed over to the Duty Officer where he was arrested. Ritesh was removed to Sion Hospital where he was declared dead. Accused No.2 was manhandled by public. He was also taken to Sion Hospital where he was admitted for treatment. He remained for some time in the Hospital and after being treated and discharged he was arrested from the Hospital. Accused No.3, who could not be arrested, was killed in encounter on 1st October, 2001. 3. On the basis of these allegations the accused were charged, who pleaded not guilty and claimed to be tried. The prosecution examined 14 4 witnesses and exhibited several documents. Before coming to the arguments made by the learned Counsel for the appellants, it will be necessary to go through the evidence as produced by the prosecution. 4. PW 1 – Rakesh, is the brother of the deceased. He stated that the deceased died on 24th July, 1998. The deceased was running business of phenol and also running a Chinese food stall on cart. The witness used to help him in his business. His brother had employed four waiters on the food stall and the business of running food stall was being run between 7.30 a.m. to 11.30 p.m. On the day of occurrence at about 9.35 p.m. his brother was doing his business on Chinese food cart situated at a place between building Nos. 12 and 13 near a garden at Sardar Nagar No.1. At that time his friends were also present. The name of one of his friends was Madhu. At that time one boy came from rear side from the railway track and fired one shot towards his brother Ritesh. He was accompanied by two persons. Thereafter Ritesh collapsed on the ground. He had noticed two persons at that time running towards the Railway track. He and Madhu chased them. While running one person, out of them, fell on the ground and since he was following him he also fell on his person. At that time Madhu also reached there. Madhu caught hold of the person who fell on the ground and he started chasing the another person who was then running towards Sion side. 5 While another person was trying to escape by boarding a taxi, he apprehended him. PW 1 identified the person who fell on the railway track as Accused No.2. He also identified the person who was trying to escape by boarding the taxi as Accused No.1. Witness stated that Accused No.2 fired a revolver shot at his brother. Thereafter, the police arrived near the motor taxi and took the custody of Accused No.1. He returned to the place where his brother had fallen. At the scene of offence, he came to know that his brother was removed to Sion Hospital. He went to the Sion Hospital. His brother was admitted to I.C.U. He also saw the person brought on stretcher by the Police. He was Accused No.2. The statement of this witness was recorded by the Police in the Hospital. That was F.I.R. Dated 24th July, 1998. He identified the signatures on the F.I.R. and exhibited it as Exh.12. He also identified the clothes his brother was wearing on the date of occurrence. In the cross-examination, he stated that his brother or he had no licence to sell Chinese food. He denied the suggestion that when his brother fell down after receiving the bullet injury, he came to know that somebody had fired revolver shot at his brother. This witness further stated that he had seen the assailant while firing a revolver shot at his brother. The sequences in which he chased one of the accused and fell on the railway track had been completed within 1 & ½ minutes to 2 minutes. The person fallen on 6 the railway track had fallen on his face. Immediately, after he apprehended the person who was boarding the taxi the police arrived and police took away that man in the said taxi. He left the spot and went to the scene of actual offence. He did not know anything about the man whom he apprehended near the taxi. His complaint consisted of eight pages. He had not signed any typed or printed paper in the hospital. He did not remember who recorded his statement. He was not in a proper state of mind. From the date of incident, he had no occasion to accompany the police at any other place. When he returned from the place where he had apprehended the person who was boarding the taxi and reached the actual scene of offence, he did not see the person who had fallen near the railway track. He visited the Sion Hospital. He did not see Madhu around the scene of offence. He did not know where did he go. However, he met Madhu in the Hospital on that day. When he went to the Hospital, where Madhu was already present. Madhu had not removed his brother to hospital. Madhu was friend of his brother and was not his relative. Apart from himself, no other relative of the deceased was present at the time of occurrence around the Chinese food stall. He had shouted “Pakdo – Pakdo” at the time when the assailants were running. He denied the suggestion that he had not seen the man firing a short at his brother. After about 5 to 10 minutes of his reaching the Sion 7 Hospital, the accused was brought on stretcher. When he reached the Hospital, police was already there. In the hospital, he did not notice that Madhu was talking with the police. He reached Sion Hospital at about 10.05 p.m. He also stated that Pravin was his another brother and police cases were pending against Pravin. He was killed in encounter by the Police. He did not know as to whether the deceased Pravin had many enemies. He was given certain suggestion that he was not present at the scene of offence, which he did not accept. 5. PW 2 – Raj Gangaram Medhara, is a panch witness. He stated that at about 9.30 p.m. he was called by the Antop Hill police near railway crossing. He was required to act as a panch by the Police for search of one person. He asked the name of that person before taking search. The person who gave his search was Shankar. He did not ask any other question. He found a revolver on his person, which he handed over to the police officer who took out a magazine from it and seven bullets were found in it. Some numbers were written on the bullets, however, he did not remember it. Police kept bullets and the magazine in separate cover. Another person was brought there by the police. Police asked him to adopt the aforesaid procedure. The person brought there, gave his name as Dinesh. On taking his search, he found 22 bullets along with one wallet on his right side pocket. Some 8 numbers were written on the bullets but he did not remember the same. The panchanama was drawn by the Police. The Police obtained his signatures on the panchanama. He identified his signatures on the panchanama. He identified both the accused in the Court. He also identified the magazines and the bullets and his signatures. In the cross-examination, he stated that he was student on the day he acted as a panch and he was 22 years old. While he was returning from his friend' s house and proceeding towards his residence, the police met him there. When the Police Officer requested him to act as a panch, he saw Accused Nos.1 and 2 and one more person. When he asked his name, he gave his name as Madhu. He did not know the difference between a revolver or a pistol or a shot gun. Articles Nos.3, 4, 5 and 6 were the same articles which were taken charge under Exh. 14. He could identify article No.3 because there was star mark embossed on it and letter “B” embossed near the trigger. The mark of identification i.e. star mark and the letter “B” appearing on Article No.3 pistol were mentioned in Exh.14. He also identified Article No.4, which was magazine. However, he could not explain as to how he identified the magazines to be the same which was seized in his presence. Madhu remained all along with him till he signed and process was over. The process lasted for about 45 minutes to one hour. At about 9 10.30 p.m. he became free. He did not know anything about Madhu. When left at about 10.30 p.m. Madhu was there. 6. PW 3 – Sudhakar Mahadev Kadam, is also a panch for the panchanama of the scene of offence. At the scene of offence one Rakesh, a fat boy, was present. The scene of offence was situated at place near the sign board of Sardar Nagar Ganesh Utsav Mandal and it was also near to Sainath Biscuit Mart shop. He noticed blood at three places. He noticed an empty lying there. In his presence, the police took charge of blood sample, blood scraping and some soil as also the said empty. He identified his signatures on the panchanama. In his cross-examination, he stated that he did read over the contents of Exh.16 earlier. When he read the contents of Exh.16 in the Court, it was 3rd time, that he was reading it. Except three blood patches and Article No.7, he did not notice anything at the scene of offence or around the scene of offence. Nobody accompanied the fat boy except the police. He was running a chicken shop. He denied the suggestion that he was not present at the scene of offence when the panchanama was made. He also denied that Dayanand Salian was not present there. 7. PW 4 – Kailash Devendra Acharya, is another panch witness for seizure of clothes. He was in Sion Hospital attending to his friend whose 10 father was admitted there. One nurse handed over the clothes to the police constable in his presence. All clothes were wrapped and sealed by the police constable. He did not recollect the colours of the clothes. The clothes were shown to him. Then he identified the apparels shown to him to be a shirt. He could not, however, identify the pant from the shown clothes. He identified his signature on the panchanama. being Exh. 18. 8. PW 5 – Ashok Bapu Honmane, is a Police Sub-Inspector. In the month of July, 1998 he was attached to Antop Hill Police Station. The D.C.P. had assigned him investigation of C.R. 257 of 1998 of Dadar Police Station under Sections 392, 307 r/w 34 of the Indian Penal Code. On 24th July, 1998 he was waiting for his informant at about 8.30 p.m. at Shivaji Chowk, Antop Hill. He heard the noise of bursting of crackers at about 9.25 p.m. He saw people running in that area. Since he suspected that something had happened, he also rushed towards that direction. At that time he saw one person was lying in a pool of blood in the corner of Building Nos.12 and 13 of Sardar Nagar No.1 and some persons were lifting him to take for treatment. At the same time, some persons were running away in the direction of railway line chasing one person. They also followed them. In the meantime, the said person, who was running, got his leg entangled in the railway track and fell down. The person who was chasing the said man, 11 caught hold of him and at the same time they also caught him. At that time he saw some persons were chasing one person in the direction of Sion. Therefore, he handed over the first apprehended person in the custody of P.N. No. 21166. Thereafter, he along with API Gaware followed them and he saw those persons caught hold of that person. At the same time, he also reached there and caught hold of him. He brought second apprehended person to the first apprehended person. He asked name of the first apprehended person. He gave his name as Shankar Tukaram Gajaghari. He also asked second apprehended person, who gave his name as Dinesh Lalta Yadav. He identified these two persons in the Court. Thereafter, they called two panchas and drew the search panchanama. During the personal search of accused No.2 they found one pistol which was stuck at the front side of his pant pocket. He checked the pistol and found seven rounds in the magazine of the said pistol. The said pistol, magazine and seven rounds were taken charge and were wrapped, sealed and tied with string. Exh.14 was the same panchanama, it was in his handwriting and its contents are true and he identified his signature. He also identified the object. Thereafter he took search of Accused No.1. During search he found 22 rounds in the right side of his pant pocket which were taken charge under the panchanama. This was also identified by him. Thereafter, Accused No.2 was 12 removed to Sion Hospital for treatment as he had sustained head injury. The other accused person Dinesh was brought to the Police Station. In his cross-examination, he stated that when the Police Officer leaves the Police Station for performing his duty he has to make entry in the station diary. The station diary shows the movements of police officers. So also, if any police officer returns to the police station he has to make entry in the station diary. On 22nd July, 1998 he made a station diary entry while leaving the police station. He did not make any station diary entry on 24th July, 1998 when he returned to the Police station. However, the Duty Officer, PSI Sakharkar had made the entry into the station diary in respect of their returning to the police station along with accused and muddemal property. After the panchanama was drawn, they referred the injured accused to the hospital and thereafter, after about 5 to 10 minutes they returned to the police station. At that time A.P.I. Gawane accompanied him. He did not recall whether it was written in the diary entry that API Gawane accompanied with him while returning to the police station. It was correct that API Gawane was also on the special duty along with him which was deputed by DCP for investigation of another case. In this case his own statement was recorded by him. Except drawing panchanama he had not done any investigation of the case. He had given his statement in writing on 13 the next day of occurrence. He felt that these two arrested persons might be involved in the case when they were arrested by him. It was correct to say, it was sure that they were involved in this case. He stated that “If it was written in his statement that at the time of giving his statement he came to know that those two arrested persons were involved in the murder of Ritesh Shetty, is not correct”. It did not happen that he had narrated the incident and P.I. had written it at the same time. It was correct that at the time of giving his statement the case was registered and given C. R. number. He further stated that at the time of giving his statement he had stated that he was giving the statement under the same C. R. number. He had not, however, incorporated the sections in his statement. It took 30 to 40 minutes for giving his statement. He had not given said statement on the date of panchanama because he had gone for some emergency work. He did not report to P.I. regarding the apprehended persons and recovered muddemal because P.I. had already left the police station. When he wrote his statement before P.I. no one else was present. At that time muddemal property was not before him. He did not remember any accused person was present before him at the time of recording of his statement. 9. PW 6 – Prashant Naresh Samberkar, was attached to L.T.M. Hospital as a lecturer from 23rd March, 1997. On 28th July, 1998 he received one 14 dead body of Ritesh Shetty for post mortem and he started post mortem at 9.45 a.m. It took two hours to conduct the post mortem. The following external injuries were observed by him: 1)Bullet injury star shape 1cm. X 1 cm. at the left preauncular region. 2)Circular exit wound 0.5 cm. X 0.5 cm. at the right occipital region. He also found following internal injuries. 1)Skull and brain: Two irregular fracture at the base of brain and occipital bone. 1 cm. X 1 cm. each and there is evidence of subdural haematoma ( 10-20 grams) on cerebrum and cerebellum, and there was also evidence of frank blood 20 cc. in the occipital fossa. 2)Brain : Edematous, Cerebral edema, S.A.H., subdural haematoma intra ventricular bleed. 3)Thorax : There was only evidence of lungodema. Rest of the parts were intact. 4)Abdomen: Liver fatty and enlarged. 5)Stomach: Muzosa congested. Rest of the organs were intact. All the injuries were antemortem. After completing the post mortem, he gave his opinion and the cause of death was craniocerebral injuries in a case of fire arm injury to the head. He produced the original post mortem notes with record and identified his signature. It was exhibited as Exh.21. He was of the opinion that the bullet injury from pre-auricular region to occipital region is sufficient to cause the death of a person in ordinary course of the nature. He sent certain organs for histopathology and chemical analyses. C. A. report was exhibited by him as Exh.22. 15 In his cross-examination he stated that there were three types of bullet injuries; one being contact, second being close and third being distance. In the case of contact bullet injury, there will be tatoo in marks which may or may not be present. In the case of close bullet injury there were scorching of the wound which may or may not be present. In the present case scarring or tatooing is not present at the entry wound. In case of contact wound, the gases burst inside and under the skin surface therefore there is star shape entry wound. He could say with confident that it was a contact and close injury but in the P.M. notes he did not mention anything about the contact and close injury. He did not know the meaning of beyond `Powder Range'. He had no opportunity to examine the weapons used in the present case. 10. PW 7 – Dr. Nimish Kishorbhai Makwana, is a doctor working in the Sion Hospital as Housemen in General Surgery Department. On 24th July, 1998 at about 11.55 p.m. one patient by name Shankar Tukaram Gajghat (Accused No.2) was brought to the Hospital by P.C. No. 14883 of Antop Hill Police Station. The said patient was admitted and O.P.D. Number of the said patient was 9998/030763. The said patient was admitted in Ward No. 24. The history was given by the said patient was that he was assaulted by a mob on 24th July, 1998 at 9.30 p.m. He personally examined the said patient 16 and he noticed the following injuries on the patient. The patient had sustained three contused lacerated wound. Two C.L.W. wherein left parital region, and one was over vertex admeasuring 3 x 0.5 cm. X subcutaneous deep, 2 x 0.5 cm. Bone deep, 2 x 0.5 cm. Bone deep respectively. Then he stated that such injuries were possible if a person falls on railway track and manhandled and also possible if the said person is assaulted by a heavy blunt object. He was not present when the said patient was discharged. In his cross-examination, he stated that it was correct to state that he examined the patient at 12.30 a.m. On 25th July, 1998. The alleged history of assault was given by police constable who brought the patient to casualty. It was correct to state that the vertex injury was not a penetrating injury in that case. 11. PW 8 – Dr. Santosh Sahdev Parab, was a Casualty Medical Officer attached to Sion Hospital. He was having night duty from 9.00 p.m. to 7.00 p.m. On 24th July, 1998 a patient by name Shankar Tukaram Gajghat was brought to the hospital at 9.55 p.m. by P.C. No. 14833 of Antop Hill Police Station. He had examined the patient by name Shankar. He did not treat him. He examined the said patient at 9.55 p.m. and he found following injuries on his person: 1)Contused lacerated wound 3 x 1 cm. deep left parito occipital 17 region. 2)There was no clinical evidence of fracture, and there was no clinical evidence of other injuries. The alleged history was that the patient was found unconscious at Antop Hill at 9.30 p.m. and smelling of