1 cri-appeal-864-00 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 864 OF 2000 1.Vijay Ramchandra Thopate ) 2.Ganpat Bhikaji Bamane ) both permanent residents of ) Mumbai, presently in judicial ) custody at Yerawaqda Central ) Prison, Pune. )..APPELLANTS (Org.Accd.Nos.2 and 6) Versus The State of Maharashtra through ) D.C.B. CID, Mumbai. )..RESPONDENT WITH CRIMINAL APPEAL NO.132 OF 2001 The State of Maharashtra )..APPELLANT Versus 1.Raju Umakant Baje, aged about ) 2 cri-appeal-864-00 29 years, R/o.Room No.17, ) Maheshwari Mandir Vasahat, Sai ) Baba Marg, Parel, Mumbai-12. ) 2.Sanjay Baban Devkar, ) Aged about 29 years, ) R/o. Plot No.556, Sai Nath Wadi, ) Thane Belapur Road, Airoli, ) New Mumbai, District Thane and ) Bagubai Chawl, R.No.1, Old Kurla ) Road, Kurla, Mumbai-400 070. )..RESPONDENTS (Org.Accd.Nos.5 and 8) Mr. Sayaji D. Nangre, Mr. Ranjeet M. Pawar and Mr. Sameer Nangre for the Appellants in Appeal No.864 of 2000. Mr. P.S. Hingorani, APP for State in Appeal No.864 of 2000 and for Appellant in Appeal No.132 of 2001. Mr. Sudeep Pasbola with Mr. Rahul Arote, for respondent No.2 in Appeal No.132 of 2001. CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. RESERVED ON: 9TH AUGUST, 2010 PONOUNCED ON: 19TH OCTOBER, 2010 3 cri-appeal-864-00 JUDGMENT (PER SHRI B.H. MARLAPALLE, J.): 1. Both these Appeals arise from the order of conviction and sentence passed on 25th July, 2000 in Sessions Case No.526 of 1997. By the said order all the accused came to be acquittd under Section 120B of the I.P.C., and accused No.1-Arun Ananda Londhe, accused No.2-Vijay Ramchandra Thopate and accused No.6-Ganpat Bhikaji Bamane have been convicted for the offences punishable under Sections 143 and 147 of I.P.C., accused Nos.2 and 6 have been convicted for the offences punishable under Sections 144, 148 and 302 of I.P.C., accused No.6 has been convicted for the offence punishable under Section 307 of I.P.C., accused No.1 has been convicted for the offence punishable under Section 302 read with Section 34 of I.P.C. Accused Nos. 1 and 2 are convicted for the offence punishable under Section 307 read with Section 34 of I.P.C., accused Nos. 2 and 6 are convicted for the offence punishable under Section 27 of the Arms Act, accused No.1 is acquitted for the offence punishable under Section 27 of the Arms Act, accused Nos. 2 and 6 are also convicted for the offence punishable under Section 135 read with Section 37(1)(a) of the Bombay Police Act, accused Nos. 3, 5, 7,8 and 9 are acquitted for the offence punishable under section 302 read with Section 34 of I.P.C. They are 4 cri-appeal-864-00 further acquitted for the offence punishable under Section 307 read with Section 34 of the I.P.C., accused Nos. 1, 2, 5 and 8 are acquitted for the offence punishable under Section 25(1-B) (a) read with Section 3 of the Arms Act and the accused No.1 is acquitted for the offences punishable under Section 144, 148 and 302 of the I.P.C. and under Section 135 read with Section 37(1)(a) of the Bombay Police Act. Criminal Appeal No. 864 of 2000 has been filed by accused no.2 and accused no. 6 and both of them are in jail as at present. Whereas, Criminal Appeal No. 132 of 2001 has been filed by the State of Maharashtra against the acquittal of accused nos.5 and 8. During the pendency of these appeals, accused no. 5 – Raju Umakant Baje died and hence Criminal Appeal No.132 of 2001 has abated against him. 2. Dr.Dattatraya Narayan Samant, popularly known as Dr.Datta Samant and a well known Trade Union Leader was assassinated on 16th January, 1997 near his house, while he was traveling in his Tata Sumo Jeep and the complainant Shri Bhimrao Sonkamble, P.W.15 was the driver of the said jeep. As per the prosecution case Dr. Samant had a bungalow by name Sundar Narayan Niwas at Padmavati Road, I.I.T. Powai, Mumbai-76. At about 11.10 5 cri-appeal-864-00 a.m. he came out of the bungalow, sat in the jeep bearing No.MH-03- H-2814 and proceeded towards his Pant Nagar office. When the jeep crossed the distance of about 300 meters from his bungalow the driver was constrained to stop the vehicle immediately as one person pulled the bicycle in the middle of the road and dropped it in front of the jeep. The said person took position by the road side and two other persons came near him on the left side of the jeep. There were two persons on the right side of the jeep and all these four persons had fire arms in their hands. The persons on the right side of the jeep fired the bullet shots first and followed by others. There was continuous firing by the assailants. When they stopped firing the complainant could see that Dr. Samant was lying injured on the rear side seat and the complainant had also sustained injuries. He got down from the vehicle and started running towards Dr. Samant’s bungalow, but he fell down on the road because of giddiness. The driver was removed and taken to the Rajawadi hospital by the police, whereas Dr. Datta Samant was taken to Aniket Nursing Home in the same jeep by his son Bhushan Samant. The Nursing Home was owned by Dr. Prakash Samant. Dr. Samant was declared dead in Aniket Nursing Home by the attending doctors. 6 cri-appeal-864-00 The statement of the complainant was recorded by the police on 16th January, 1997and C.R. No.21 of 1997 came to be registered with Sakinaka Police Station against 4 unknown persons for the offences punishable under Sections 302, 307, 341 read with Section 34 of the I.P.C., and Sections 3, 25 and 27 of the Arms Act. The complainant’s supplementary statement was recorded on 17th January, 1997. The Police Inspector Mr. Landge, Police Inspector Thakur and other officers of the Sakinaka Police Station visited the spot on the same day and drew spot panchnama at Exhibit 151. There were dry blood spots on the road and broken glass of window panes of the jeep and 8 empty cartridge of fire arms which were seized from the spot. Out of these 8 cartridges found on the spot, 3 were 9 m.m., and the remaining 5 were 7.65 m.m. Police also visited the bungalow by name Gautam Niwas near the spot of incident and recovered one bullet which had passed through an iron sheet and fallen on the ground. The spot panchnama was completed at about 16.10 hours. The Police also inspected the Tata Sumo jeep at Aniket Nursing Home and during the inspection they found that the left side window panes were broken and blood stains were also found on the flooring of the vehicle and four 9 m.m., empty cartridges were also recovered and seized from the said 7 cri-appeal-864-00 vehicle. 3. Inquest panchnama of the dead body was drawn at Aniket Nursing Home and in the presence of two panchas at Exhibit 140 and as many as 19 injuries were noticed on the dead body. The dead body was removed to J.J. Hospital for postmortem. The clothes of the complainant were seized by the police during the course of investigation under panchnama at Exhibit 205. The postmortem examination was conducted by Dr. Ashok Shinde (PW 6) of Police Hospital, Nagpada and before starting the postmortem he had taken out x-rays of the wounds. During the course of the postmortem he found 11 fire arms entry wounds and 6 fire arms exit wounds in addition to the other wounds found on the dead body and 4 bullets were retrieved from the dead body. One deformed lead piece and deformed copper piece was also retrieved from the dead body. Statement of witnesses came to be recorded by the Sakinaka Police officers and further investigation was handed over to the D.C.B., C.I.D., by the Commissioner of Police. Thereafter the investigation was taken over by Mr. T.R. Chavan (PW 68), Senior Police Officer. The blood samples as well as empties recovered from the spot and Tata Sumo jeep were sent to the Chemical 8 cri-appeal-864-00 Analyzer along with the blood stained cloths, bullets recovered from the dead body, deformed bullet cover and lead piece. The C.A. (Ballistic) of Forensic Science Laboratory report dated 12th February, 1997 ( Exh. 30) was received. Accused No.1 and Accused No.2 were apprehended at Kolhapur in room No.312 of Hotel Ayodhya situate at Kawala Naka, by the Kolhapur police and the said room was raided by Deputy S.P. Mr. Shinde (PW 8) along with two independent panchas and police party on 23/1/1997. Their personal search was taken in the presence of panchas and accused No.1 was found in possession of one 9 m.m. foreign made pistol and cash of Rs.800/-. Accused No.2 was found in possession of a German made 7.65 mm. automatic pistol and a cash of Rs.1210/-, a receipt of Hotel Ayodhya in the name of accused No.1 indicating payment of Rs.350/- to the said Hotel was also recovered from the beneath the pillow of one of the beds. All these articles were seized. During the forensic examination one 9 m.m. pistol empty was found below the mat near the driver’s seat of the Tata Sumo jeep. One cuprojacketed bullet having rifling mark was found below the mat near rear seat and similar bullet was found in the rear side of the jeep. During the course of investigation accused No.5 and 9 cri-appeal-864-00 accused No.6 were taken in custody on 11/2/1997 from Hotel Welcome Inn, Ahmedabad by the Police Inspector Mr. Pawal and Senior Inspector Mr. Shinde from room No.202 of the said hotel located in Navrangpura, Ahmedabad City. The personal search of accused No.6 resulted in the recovery of cash of Rs.250/-, one identity card issued by the Indian Audit & Accounts Department and one railway ticket from Varanasi to Surat dated 7th February, 1997. The personal search of accused No.5 resulted in recovery of cash of Rs.83/-, one visiting card of hotel Welcome Inn and one visiting card of Girnar Lodge, Varanasi and one country made revolver having six chambers, loded with six rounds. All these articles along with one blue bag containing personal belongings of accused Nos. 5 and 6 were seized under panchnama at Exhibit 167. Both the accused were brought to Mumbai and the country made revolver and cartridges were re-sealed under the panchnama at Exhibit 244 dated 12th February, 1997 and they were put under arrest on the same day. 4. While under arrest the accused No.6 volunteered to make statement and accordingly he lead to the house of accused No.8-Sanjay Baban Devkar situated on the main road of Airoli village. Accused No. 10 cri-appeal-864-00 8 had produced one bag, one steel tank which contained the following articles:- 1. One 9 mm pistol having marking “TAURUS PT 99 AF 9 MM PARA. IT HAD ALSO MONOGRAM OF tarun brazil engraved on it. On eh other side of the pistol police found marking “TAURUS INT MFG. MIAMI FLA. MADE BRAZIL”. It was found loaded with 8 (eight) live cartridges. 2. One pistol of foreign make. 3. One small card box containing 35 (thirty-five) 9 mm live cartridges. 4. One small card box containing 35 (thirty-five) 9 mm live cartridges. 5. 11 (eleven) loose 9 mm live cartridges. 6. One small plastic box containing 50 (fifty) rounds of .22 bore R.F. Long rifle. 7. 11 (eleven) live cartridges of 7.65 mm. 8. 13 (thirteen) live rounds of .38 bore. The fire arms and ammunition so recovered were sent to the ballistic expert 11 cri-appeal-864-00 and the report dated 3rd April, 1997 was received. The statement of witnesses were recorded after the incident and thereafter some of these witnesses had given description of the accused, who had fired bullets on the Tata Sumo vehicle of the deceased. Accused Nos.1, 2 and 6 were subjected to T.I. Parade at Arthur Road Prison and the parade was conducted by Shri Nagesh Sherigar, Special Executive Officer. As per the statement of these witnesses, five accused who had fired bullet shots had proceeded towards IIT, Powai from the Padmavati road in an auto rickshaw. It was also alleged that accused No.6 had fired a shot in the air to threaten the public. It was also claimed that accused No.6 before leaving the spot had chased the injured driver driver Bhimrao Gyanoba Sonkamble to eliminate him, but thereafter the accused came back and left the spot along with others. The statement of the rickshaw driver was also recorded and he participated in the T.I. Parade in which he identified accused Nos.1, 2 and 6. The investigation also revealed that accused No.6 had obtained one mobile telephone SIM card No.9821057075 from BPL and it was used for contacting other accused including the absconding accused No.4-Bharat Singh @ Bhagwantsingh Kuwar Singh Thakur @ Bharat Nepali. It was also revealed that accused No.4 was having a BPL mobile phone bearing SIM card No.98210817844 whereas accused No.1 was also having a mobile of the same company bearing SIM card No. 12 cri-appeal-864-00 9821056688 and all these mobiles were used before, during and after the alleged incident by the accused for contacting each other. As per the prosecution accused Nos. 1, 2 and 6 and the wanted accused No.10-Vijay Chaudhary, accused No.11-Vikram @ Vicky had taken part in the actual opera]tion of firing on Dr.Datta Samant and the driver. As per the prosecution accused No.3 -Prakash Shanker Sawant had transported two weapons to Mumbai from Kolhapur which were later on seized from accused Nos. 1 and 2. Accused No.5 was one of the conspirators and accused Nos.7 and 9 were the persons who wanted to eliminate Dr. Datta Samant on account of Union rivalry in the factory of Premier Automobiles Limited. Accused Nos. 7 and 9 had entered into a conspiracy and wanted accused no.4 had taken active part in the said conspiracy by masterminding the whole operation to eliminate the deceased and he had received some amount from accused no. 7 for carrying out the operation. During the course of investigation, it was also revealed that accused no.5 had obtained a passport by posing himself to be Arun Londhe and it was intercepted at post office at Kolhapur and taken charge by PW 8 – Shri Shinde, Dy. S.P. of Kolhapur and it was forwarded to the IO. One diary was seized from the house of the father of accused no.5 at Parel, Mumbai and it is alleged that the entries made in the said diary regarding the addresses and telephone numbers were in the hand writing of 13 cri-appeal-864-00 accused no.1 – Arun Londhe. The specimen signatures of accused no. 1 along with his hand writing were sent for the opinion of the hand writing expert and Mr. Biradar – PW 71 had submitted his report that the writing in the register of hotel Ayodhya, writing in the diary seized from the father of accused no.5 and the specimen of hand writing were by one and the same person. Similarly, specimen hand writing of accused no.5 was obtained by asking him to write “Arun Londhe” and the expert’s opinion indicated that the signature on the passport i.e. “Arun Londhe” and the specimen hand writing so obtained were of the same person. Based on this, the prosecution alleged that accused no. 5 wanted to leave India under the fake passport. The prosecution further claimed that mobile No. 9821057075, which was with accused no.6, was obtained by him through his brother and the SIM CARD was handed over to his brother – Chandrakant Bamane by Mr. Subramaniam of BPL for temporary use till the telephone was delivered to them officially. But the delivery challan of the said number was singed by accused no. 6 and he was working as a Record Keeper in the office of the Principal Director of Commercial Audit and Ex. Officio Member Audit Board-1, Mumbai-4. The hand writing expert has confirmed the hand writing of accused no. 6 on the delivery challan and the leave applications. Print out of the bills of mobile telephone allegedly used by accused no.6, accused no.4 and accused no. 7 14 cri-appeal-864-00 and his two brothers for the relevant period were also collected during the course of investigation and it was revealed that there was frequent calls from and to the said mobile phone. The accused no.7 had also used the mobile phones of his two brothers. It was also claimed by the prosecution that an amount of Rs.1,00,000/- in two installments was paid to accused no. 4 by accused no. 7, through his brother and cousin, the first installment was paid at Kasturi Plaza Complex, Dombivali and the second installment was paid at Mamta Hotel, MIDC, Dombivali, but on the same day i.e. on 16.1.1997. It is further alleged that another amount of Rs.2,00,000/- was paid on 28/1/1997 at Garden Hotel, Panvel to the brother of accused no.4 – Pushkarsingh. 5. Accused nos. 1 and 2 were arrested on 23/1/1997 at Kolhapur, accused no. 3 was arrested on 30/1/1997, accused no.4 was arrested on 11/2/1997, accused nos. 5 and 6 were arrested on 12/2/1997 after they were picked up from Ahemadabad, accused no. 7 was arrested on 13/2/1997 and accused nos. 8 and 9 were arrested on 17/2/1997 and 10/4/1997 respectively and accused nos. 10 to 16 were shown as wanted accused. On completion of the investigation, the charge-sheet was filed against accused nos.1 to 9 in the court of the learned Chief Metropolitan Magistrate, 19th Court, Explanade, Mubai and the case was committed, as being exclusively triable, to the 15 cri-appeal-864-00 Sessions Court. A separate charge-sheet came to be filed against wanted accused no. 12 but he was discharged on 12/10/1999. On the same day, charge was framed against accused nos.1 to 9 at Exh. 13. All the accused pleaded not guilty to the charges and claimed to be tried. 6. The prosecution examined in all 73 witnesses in support of its case and Mr. Bhushan Samant, the son of the deceased, was examined as a court witness after the prosecution examined its witnesses. The prosecution claims PW 12 – Satish Ghade, PW 13 – Mukund Gaikwad, PW 14 – Sakharam Johe, PW 16 – Ram Shankar Tiwari, PW 17 – Habib Ghankar, PW 20 Zafarali Sayyed, PW 24 – Ramsamuji Varma and PW 28 – Rajendra Narkar as the eye witnesses in addition to the complainant – Bhimrao Sonkamble – PW 15. In the evidence of the court witness – Bhushan Samant, it came on record that the deceased has three sons. He was staying with his elder son – Dr. Prakash Samant and the youngest son – Ganesh Samant, who is an engineer and staying at Sundernarayan Niwas and Bhushan Samant, the middle son, was not staying with him. The youngest son had his office in the nearby building known as Nilam Shopping Centre. Bhushan Samant was at 16 cri-appeal-864-00 Sundernarayan Niwas between 10.30 to 10.45 p.m. on 16/1/1997 and after he left the house by his jeep, Bhushan Samant went to Ganesh’s office (Abhishek Enterprises) at about 11 a.m. and there he received a message that his father was shout at. He, therefore, rushed to the spot where the Tata Sumo jeep with Registration No. MH-03-2814 was standing. He found that his father was lying in an injured condition in the said jeep and the left side window glass of that vehicle was broken. He immediately asked driver Raju (another driver of his father), who had reached the spot in Maruti-1000 car to drive the jeep to Aniket Nursing Home. He stated that one gas cylinder and bicycle were lying in front of the Tata Sumo jeep and both these articles were removed by the persons who had gathered at the spot. They reached Aniket Nursing Home within 8 to 10 minutes and Dr. Datta Samant was immediately removed to the operation theater and was examined by Dr. Rajbhar, who declared his dead. Bhushan Samant, therefore, informed the news to his brothers as well as uncle and asked all of them to come to Aniket Nursing Home. Dr. Prakash Samant – PW 65 was on duty at the Rajawadi Hospital at about 11.30 a.m. and he received the message that his father was shout at and he should reach Aniket Nursing Home. He reached Aniket 17 cri-appeal-864-00 Nursing Home at about 11.55 a.m. and saw that his father was already dead and Dr. Wagle and Dr. Rajbhar had attended to his father. The dead body of Dr. Datta Samant was removed to J.J. Hospital for post mortem and inquest panchanama at Exh.140 was drawn by the police before the post mortem. 7. As per Dr. Ashok Shinde – PW 6, who was the Medical Officer at Police Hospital, Nagpada on the date of the incident, Dr. Datta Samant’s dead body was received at 16.20 hrs. on 16/1/1997 and it was brought by Police Constable No. 23852 of Sakinaka Police Station when the said doctor was present. He conducted the post mortem between 4.25 p.m. to 6.35 p.m. and on the external examination, he found the following injuries :- (i) Fire arm wound of entry on the left side head laterally 4.0 c.m. above left eyebrow lateral and 7.0 cm. Above and front left external ear, 2.0 cm. X 1.6 cm. Oval, margins irregular, inverted, no tattooing/singeing of hair, blood stained brain matter visible. (ii) Abrasion red colour one cm. above and medially ext. injury No.one on left side head, laterally, 2.0 cm. X 1.4 cm. (iii) Abrasion red colour 2.0 cm. below ext. injury No.one 1.3 cm. X 1.1 cm. (iv) Fire arm wound of entry on the right side neck below chine one cm. from midline, oval, 1.0 cm. X 0.8 cm. with 18 cri-appeal-864-00 guttering below and laterally 2.0 cm. length, inverted margins, No tattooing / singeing of hair. (v) Fire arm wound of exit on the left side neck below chin two cm. from midline, 1.6 cm. X 1.4 cm. Inverted margins. (vi) Fire arm wound of entry on the right side chest from 3.2 cm. below right collar bone, 3.5 cm. from midline, 0.8 cm. diameter with 0.5 cm. semicircular abraded collar on lower and outer (lateral) aspect, inverted margins, No tattooing or singeing of hair, dried blood/clots within. (vii) Fire arm wound of entry on the right side chest front 10.0 cm. from midline, 5.0 cm. below and laterally to right nipple, 0.8 cm. diameter with 0.1 cm. semicircular abraded collar on lower and medially, inverted margins, No tattooing or singeing of hair. (viii) Fire arm wound of entry on the right side chest front, one cm. medial to right nipple, 0.8 cm. diameter with 0.1 cm. semicircular abraded collar on lower and laterally inverted margins, No tattooing/singeing of hairs. (ix) Fire arm wound of entry on the right side chest front anterior arm-pit line, 2.9 cm. below and lateral to right nipple, 1.0 cm. below right axilla, 0.8 cm. diameter with 0.2 cm. semicircular abraded collar on the lower and outer aspect, inverted margins. No tattooing/singeing of hair, dried blood/clots within. (x) Fire arm wound of entry on the right side chest from 13.5 19 cri-appeal-864-00 cm. away from midline, 8.3 cm. below right nipple 0.8 cm. diameter with 0.2 cm. semicircular abraded collar on lower and outer aspect, inverted margins. No tattooing/singeing of hair, dried blood/clots within. (xi) Fire arm wound of entry on the right side chest front 4.3 cm. below and lateral to external injury No. ten (10), 0.7 cm. diameter (0.7 cm. diameter) with 0.1 cm. abraded collar encircling, inverted margins. No tattooing or singeing of hair, dried blood/clots within. (xii) Fire arm wound of entry on the abdomen front, epigastric area, left side, 0.5 cm. from midline, 1.6 cm. below xiphisternum (lower end of sternum), 0.7 cm. diameter with 0.5 cm. semicircular abraded collar on lower and laterally, inverted margins. No tattooing/singeing of hair. (xiii) Fire arm wound of entry on