Cri.Appeal No.246/2004 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.246 OF 2004 Shashikant Mahadev Birje, Age Adult, Occu.Nil, R/o Jawahar Nagar, Ward No.21, H.No.819, Ichalkaranji, Taluka Hatkanangale, District Kolhapur (Presently in Nashik road Central Jail) .. APPELLANT (Accused No.4) VERSUS State of Maharashtra ..RESPONDENT - WITH - CRIMINAL APPEAL NO.1260 OF 2003 Laxmi Dhanaji Manchekar, Age 71 years, Residing at Parel Village, Girji Bhojrai, 1st Floor, R.No.12, Mumbai 400 012 (At present detained at Erawada Central Prison) ..APPELLANT (Accused No.3) VERSUS The State of Maharashtra ..RESPONDENT (at the instance of Bhoiwada Police Station) - WITH - Cri.Appeal No.246/2004 2 CRIMINAL APPEAL NO.420 OF 2010 Amol Shankar Vichare, Age 32 years, Vimal Smruti Building, 1st Floor, R.No.12, Karve Road, Dombavali (W), Thane ( At present in Nashik Central Jail) ..APPELLANT (Orig.Accused No.1) VERSUS The State of Maharashtra (At the instance of Bhoiwada Police Station) ..RESPONDENT - WITH - CRIMINAL APPEAL NO.584 OF 2004 Devendra Jaysingh Lad, Adult, At Post Shivnagar, Islampur, Taluka Walva, District Sangli ..APPELLANT (Orig.Accused No.5) VERSUS The State of Maharashtra (at the instance of Bhoiwada Police Station) ..RESPONDENT - WITH - CRIMINAL APPEAL NO.1387 OF 2008 The State of Maharashtra (At the instance of Bhoiwada Police Station) ..APPELLANT VERSUS Cri.Appeal No.246/2004 3 1. Amol Shankar Vichare, Vimal Smruti Building, 1st floor, R.No.12, Karve Road, Dombivali, (West), District Thane 2. Dattaram Krishna Pawar, At Post Fouji Ambawade, Taluka Mahad, Dist.Raigad 3. Laxmi Dhanaji Manchekar, Parel Village, Girji Bhojraj, 1st Floor, R.No.12, Mumbai 12 4. Shashikant Mahadev Birje, Jawahar Nagar, Ward No.21, H.No.819, Ichalkaranji, Taluka Hatkanangale, District Kolhapur 5. Devendra Jaysing Lad, At/Post Shiv Nagar, Islampur, Tq.Walva, District Sangli. ..RESPONDENTS (Orig.Accused Nos.1 to 5) Mr Avinash Rasal a/w Mr Narayan Kumar, Ms.Anushree Rasal a/w Mr Datta Mane a/w Mr Ashwin Rasal for the appellant in Cri.Appeal No.1260 of 2003 and Respondent in Cri.Appeal No. 1387 of 2008; Mr Adhik Shirodkar, Sr.Counsel a/w Mr Nihar Ghag i/b Mr Rajendra Shirodkar and Archit Sakhalkar for the Appellant in Cri.Appeal No. 246 of 2004 and respondent in Cri.Appeal No.1387 of 2008; Mr Amresh Sharma with Mr Yogesh Dalvi and Mr Vishal Patil for the appellant in Cri.Appeal No.420 of 2010 and Respondent in Cri.Appeal No.1387 of 2008; Mr Ganesh Gole with Mr Shyamrishi R. Pathak with Abhishek Singh for appellant in Cri.Appeal No.584 of 2004 and respondent in Cri.Appeal No.1387 of 2008; Mr J.P.Yagnik, Assistant Public Prosecutor for the State – Appellant in Cri.Appeal No.1387 of 2008 and Respondents in Cri.Appeal Nos.1260/2003, 246/2004, 420/2010 and 584/2004 Cri.Appeal No.246/2004 4 CORAM : P.V. HARDAS AND M.N. GILANI, JJ. DATE : 28th April 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants, (i) Original accused No.1 Amol Shankar Vichare stands convicted for an offence punishable under Section 302 read with 34 of Indian Penal Code, 3 (1) (i) of the Maharashtra Control of Organized Crime Act, 1999 and sentenced to imprisonment for life and to pay fine of Rs.5 lacs in default of which to undergo further further rigorous imprisonment for one year; (ii) Original accused No.3 Laxmi Dhanaji Manchekar stands convicted for an offence punishable under Section 302 of the Indian Penal Code read with Section 109 of Indian Penal Code and for an offence punishable under Section 3 (2) of the Maharashtra Control of Organized Crime Act, 1999 and sentenced to imprisonment for life and simple imprisonment for seven years and to pay fine of Rs.5 lacs in default of which to undergo simple imprisonment for one year; (iii) Original accused No.4 Shashikant Mahadev Birje stands convicted for an offence punishable under Section 302 read with Cri.Appeal No.246/2004 5 34 of Indian Penal Code and for an offence punishable under Section 3(2) of the Maharashtra Control of Organized Crime Act, 1999 and sentenced to imprisonment for life and to pay fine of Rs.5 lacs in default of which to undergo further rigorous imprisonment for one year, respectively. (iv) Original accused No.5 Devendra Jaysingh Lad stands convicted for an offence punishable under Section 25 (1b) of the Arms Act and sentenced to rigorous imprisonment for three years and to pay fine of Rs.100/0 in default of which to undergo further rigorous imprisonment for ten days, by the Special Court under the Maharashtra Control of Organized Crime Act, 1999, Greater Bombay, by judgment dated 5.8.2003, in M.C.O.C. Special Case No.7 of 2002, by these appeals question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus. P.W.13 A.P.I. Shahaji Nagnath Narsude, who was on duty as Station House Officer at the Bhoiwada Police Station on 22.3.2002 from 8.00 a.m. to 8.00 p.m., received a message from the main control room through P.S.I. Satam at about 1.45 p.m. about one person lying injured in a pool of blood in the Samarth Niwas Cri.Appeal No.246/2004 6 situated opposite Shirodkar Market. The message also conveyed to P.W.13 A.P.I. Narsude that the injuries were as a result of firing and also requested that the duty Officer should visit the scene of the incident. P.W.13 A.P.I. Narsude, therefore, informed about the receipt of the message to his seniors and the other colleagues and then proceeded in a jeep to the scene of the incident. On reaching the scene of the incident, he learnt that the injured had been shifted to the K.E.M. Hospital in a Police van. Thereafter P.W.15 P.I. Khanwilkar and other staff proceeded to the K.E.M. Hospital. P.W.13 A.P.I. Narsude also accompanied the Police staff to the K.E.M. Hospital. The injured had been admitted in Ward No.28 in the hospital. At the hospital they learnt that another person had also been injured and out of the two, one was in a serious condition. The other injured was conscious and was being medically treated. P.W.13 A.P.I. Narsude, therefore, solicited the opinion of the Medical Officer regarding the condition of the injured and whether the injured were in a position to give their statement. The Medical Officer informed P.W.13 A.P.I. Narsude that one of the injured was in a position to speak and, therefore, A.P.I. Narsude asked the injured his name, who disclosed his name as Deepak Krushnaji Sawant (P.W.1). Statement of P.W.1 Deepak Sawant came to be recorded and while the statement was being recorded, the other injured succumbed to his injures and was declared dead by the Medical Officer. The statement of Cri.Appeal No.246/2004 7 P.W.1 Deepak Sawant was recorded and his signature was obtained on the said statement at Exh.14. Accordingly, an offence came to be registered on the basis of statement of P.W.1 Deepak Sawant vide Crime No.82 of 2002. In the presence of two panchas, an inquest panchnama of deceased Mahendra Khanwilkar came to be drawn at Exh.17. The clothes of the deceased came to be seized vide seizure memo at Exh.38 in the presence of panchas. The clothes comprised of a full shirt, full pant, Banyan and handkerchief, which are Articles 30, 31 (Colly.). P.W.13 A.P.I. Narsude thereafter proceeded to the Police Station and made the necessary entries in the diary and informed his superiors about the investigation carried out so far. P.W.13 A.P.I. Narsude thereafter proceeded to the K.E.M. Hospital and seized the clothes of P.W.1 Deepak Sawant, in the presence of panchas at Exh.39. The said clothes are Articles 1, 2 and 3. After returning to the Police Station, P.W.13 A.P.I. Narsude effected the necessary entries in the station diary. The investigation thereafter came to be transferred to other Police Officer. 3. P.W.14 P.I. Arvind Patil, who in March 2002 was working as a Detection Officer in the Bhoiwada Police Station, received a message at about 1.50 p.m. from the control room about injuries being caused to one person in Samarth Niwas, opposite Shirodkar Mandal at Parel. P.W.14 P.I. Patil along with the other staff Cri.Appeal No.246/2004 8 immediately proceeded to the scene of the incident and learnt that the two injured had been shifted to the K.E.M. Hospital while P.W.13 A.P.I. Narsude and the other Police staff proceeded to the K.E.M. Hospital. P.W.14 P.I. Patil remained at the scene of the incident and drew the scene of the incident panchnama in the presence of panchas at about 4.00 p.m. at Exh.30. Samples of blood stains came to be drawn and a bullet at Article 12 came to be seized. Similarly, pillow cover etc. also came to be seized under the said panchnama. P.W.14 P.I. Patil thereafter returned to the Police Station and effected the necessary entries in the station diary and deposited the seized property by making necessary entries in the muddemal register. The D.C.P. Zone-IV had formed a team for investigation, of which P.W.14 P.I. Patil was a member. A news was published in the newspaper that the Crime Branch of the Satara Police had arrested three accused from Manchekar gang and had recovered three fire arms. Accordingly, P.W.14 P.I. Patil proceeded to Satara on 5.4.2002. The three accused, who had been arrested at Satara included the present appellant – original accused No.5 Devendra Lad. The Inspector of the Satara Crime Branch informed P.W.14 P.I. Patil that he would be sending the fire arms after they were examined by the ballistic expert. On 11.4.2002 P.I. Patil proceeded in search of original accused No.2 and learnt at village Fouji Ambawade that accused No.2 had sustained an injury to his leg Cri.Appeal No.246/2004 9 and had been admitted in the hospital at Mahad. P.W.14 P.I. Patil learnt the name of the hospital as Yashodhan Hospital. Accordingly, a watch was kept outside the hospital and in the morning of 12.4.2002 at about 11.30 a.m. accused No.2 came out of the hospital and was accordingly apprehended. Accused No.2 was detained in the hospital itself, while P.W.14 P.I. Patil and the other staff proceeded to his house at Fouji Ambawadi and searched his house, but nothing incriminating was found in the house. Accused No.2 was brought to Bombay and thereafter the necessary entry in the station diary was effected and the accused came to be arrested at 00.35 hours. During the custodial interrogation of accused No.1 Vichare, accused No.1 expressed his willingness that he would point out the place where the shirt was hidden. Accordingly memorandum of accused No.1 Amol Vichare came to be recorded in the presence of panchas. Accused No.1 Amol Vichare took the Police and the panch to the Tulsi pipe road via Elphinstone bridge and asked the Police to stop the vehicle opposite Phonix mill. The accused and others alighted and pointed out a chawl by name Khemji Nagji Chawl No. 2 and proceeded to Room No.26. One old lady was inside the room, who disclosed her name as Sunanda Shirke. She was asked if she wanted to call a neighbour and she accordingly called a neighbour whose name was Fanse. The Police asked the lady to produce the shirt, which was handed over by the accused, Cri.Appeal No.246/2004 10 which came to be seized vide seizure memo at Exh.34. The said shirt is Article 29/1. On the same day P.W.14 P.I. Patil received information that accused No.4 Birje was in Ichalkaranji area and, therefore, P.W.14 P.I. Patil proceeded to Ichalkaranji and kept watch at the house of the accused. On 18.4.2002 at about 5.00 a.m. while accused No.4 was about to enter his house, he was apprehended by the Police and brought to Mumbai. He was arrested in the night of 18.4.2002. During custodial interrogation of accused No.4 Birje on 27.4.2002, the accused expressed his willingness, in the presence of panchas that he would point out the place where he had hidden his shirt. Accordingly, the memorandum of accused No.4 Birje came to be recorded in the presence of panchas and the accused led the Police and the panchas below the bridge. The accused alighted from the vehicle and led the Police to a public toilet (Sulabh Shouchalaya) situated opposite Sham Niwas building. The accused pointed out to two syntex tanks and was, therefore, lifted by a Constable and the accused removed a shirt between the wall and the syntex tank, which came to be seized vide panchnama at Exh.36. The said shirt is Article 29/2. 4. P.W.15 P.I. Arun Khanwilkar, who was attached to the Bhoiwada Police Station was investigating the said crime. On 22.3.2002 at about 1.45 p.m. he was informed by P.W.13 A.P.I. Cri.Appeal No.246/2004 11 Narsude about the receipt of the message from the control room. Accordingly, in the presence of Police Officers including P.W.13 A.P.I. Narsude and P.W.14 P.I. Patil, P.W.15 P.I. Khanwilkar proceeded to the scene of the offence. At the scene of the offence he was informed that the injured had been shifted to the K.E.M. Hospital in a Police vehicle. P.W.15 P.I. Khanwilkar along with the other Police staff proceeded to the K.E.M. Hospital and requested the Medical Officer to ascertain if the injured were in a fit condition to give their statements. Accordingly, P.W.1 Deepak Sawant who was in a fit condition to give his statement, gave his statement which came to be recorded at Exh.14. During the recording of the said statement, the Medical Officer pronounced the other injured Mahendra Khanwilkar as dead. On the basis of statement of P.W.1 Deepak, offence vide Crime No.82/2002 came to be registered. Thereafter inquest panchnama of the dead body came to be drawn in the presence of panchas at Exh.17. P.W.15 P.I. Khanwilkar thereafter deputed the Police staff for tracing the accused. The clothes on the person of deceased Mahendra Khanwilkar came to be seized in the presence of panchas at Exh. 38. P.W.15 P.I. Khanwilkar thereafter proceeded to the scene of the offence and learnt about the drawing of the scene of the offence panchnama and the seizure of incriminating articles. P.W. 15 P.I. Khanwilkar returned to the K.E.M. Hospital and seized the clothes of injured P.W.1 Deepak Sawant. On 22.3.2002 P.W.15 Cri.Appeal No.246/2004 12 P.I. Khanwilkar recorded the statement of Gajendra Khopkar and the statement of the staff Nurse Anuradha Parade. Additional statement of P.W.1 Deepak Sawant came to be recorded. P.W.5 Sachin Kolthankar was brought to the Police Station and enquiries were made but P.W.5 did not disclose any useful information. No statement was recorded. On 24.3.2002 statement of Ravindra Surve, Partner of deceased Mahendra Khanwilkar came to be recorded. Statements of Amit Pangam, Dr.Sangle, Sunanda Shirke came to be recorded. On 25.3.2002 bullets removed from the dead body of deceased Mahendra Khanwilkar and injured P.W. 1 Deepak came to be collected. The said bullets had been handed over to P.W.15 P.I. Khanwilkar by the K.E.M. Hospital. On 30.3.2002 the clothes and other seized articles were sent to the Chemical Analyzer along with the request at Exh.43. The bullet recovered from injured P.W.1 Deepak was referred to the Chemical Analyzer on 2.4.2002 vide request at Exh.44. On 5.4.2002 news came to be published about the arrest of members of the Manchekar gang at Karad and accordingly, P.W.14 P.I. Patil was sent to Karad. Meanwhile, original accused No.1 Vichare came to be arrested and house of accused No.1 Amol Vichare came to be searched. On 13.4.2002 accused No.3 Laxmi Manchekar came to be arrested and house of accused No.3 came to be searched. Since no incriminating articles were found, no articles came to be seized. On 23.4.2002 P.W.5 Sachin Cri.Appeal No.246/2004 13 Kolthankar came to the Police Station and disclosed certain information and, therefore, his statement came to be recorded. Meanwhile, information was received from the ballistic expert that the weapons, which were recovered by the Police at Karad were not connected with the murder of Mahendra Khanwilkar. On 25.4.2002 test identification parade was held at the Aurther road prison. Blood sample of P.W.1 Deepak Sawant came to be drawn and was forwarded to the Nagpada Police Station for being sent to the Chemical Analyzer. 164 statement of P.W.5 Sachin and Gajendra Khopkar came to be recorded on 30.4.2002. On 3.5.2002 the shirts of the accused were referred to the Chemical Analyzer along with the forwarding letter at Exh.45. The report of the Chemical Analyzer (Ballistic) is at Exh.46. Report of the Chemical Analyzer (Ballistic) in respect of the bullet, Article 9 which was removed from P.W.1 Deepak Sawant is at Exh.47. The report of the Chemical Analyzer is at Exh.48, while the report of the Chemical Analyzer (Ballistic) in respect of the bullet found at the scene of the offence is at Exh.49. Further to the completion of investigation a charge-sheet came to be filed. A proposal had been submitted for applying the provisions of the Maharashtra Control of Organized Crime Act, 1999 and accordingly, the Additional Commissioner of Police Shri R.T.Rathod granted permission for applying the provisions of Maharashtra Control of Organized Crime Act at Exh.55. The certified copies of the Cri.Appeal No.246/2004 14 charge-sheets pending against Suresh Manchekar were obtained at Exh.56. Charge-sheet in respect of pending case against accused No.2 is at Exh.57. Charge-sheet in respect of accused No.1 and accused No.2 in the Court at Kalyan is at Exh.58. The other charge-sheets are at Exh.59, 60 and 61. Accordingly, a charge-sheet came to be filed on 15.7.2002. On 15.7.2002 accused No.5 Devendra Lad came to be arrested vide arrest panchnama at Exh.X/2. During custodial interrogation accused No.5 expressed his willingness to produce a revolver and two bullets from the place belonging to his “Daji” at Karad, in the presence of panchas. Accordingly accused led the Police and the panch to a shop, which was unlocked. After removing the latch accused No.5 entered the shop and switched on the light and led the Police and the panch to a smaller room and produced a plastic bag from the plastic drum, which contained a revolver, a pistol and two bullets, which came to be seized at Exh.32. Articles 20 and 21 are the fire arms. A proposal was submitted for obtaining sanction for applying the provisions of the Maharashtra Control of Organized Act against accused No.5, which came to be granted at Exh.65. The weapons and the bullets recovered from accused No.5 were referred to the ballistic expert on 22.7.2002 vide forwarding letter at Exh.67. A report was received from the Chemical Analyzer (Ballistic) at Exh.68. Further to the completion of investigation a supplementary Cri.Appeal No.246/2004 15 charge-sheet came to be filed against accused No.5. 5. Post mortem on the dead body of deceased Mahendra Khanwilkar came to be performed by PW.4 Dr.Sunil Kadam. On examination he noticed the following external injuries. (i) Firearm wound of entry seen on the outer aspect of the right side of the head, 5 cm above the tragus of right ear and 8 cms away from the outer angle of the right eye measuring 0.8 cm in diameter, circular in shape with a circular 1 mm abrasion collar. Margins inverted. No evidence of burning blackening, tattooing and singeing of hair; (ii) Fire arm wound of entry on the back of the upper part of the right side of the neck. 8 cm away from the mid-line of the nape of the neck. It was 2.5 cms away from the right mastoid. The measurements were the same as of the injury No.1; (iii) Fire arm entry wound on the left side of the chest wall, 8 cm from the mid-line, 11 cm above left nipple, 5.5. cm below left clavicle, 151 cms from the right heel of foot. Horizontally oval in shape, directed obliquely measuring 1 x 1.2 cms with a 1 mm abrasion collar of 1 x 0.8 cm on the inner side of the wound. The wound was directed outward towards the left shoulder. No evidence of burning, blackening and tattooing and singeing; Cri.Appeal No.246/2004 16 (iv) Fire arm wound of entry on the palmer aspect of right palm on the thenar region, 4 cm below right wrist, 0.8 cm in diameter, circular in shape with 1 mm abrasion collar. No evidence of burning, tattooing, blackening and singeing. On internal examination he noticed : (i) Fire arm wound of entry No.1 was communicating through the scalp, right temporal muscle and bone causing circular fracture of the outer table with beveling edges of inner table through the dura mater through right temporal lobe causing laceration, through the base of the brain through grassing base of frontal lobe through left temporal lobe, through inner table of left temporal bone causing circular fracture, through the outer table showing beveling. Bullet retrieved from left temporal muscle embedded in haematoma. The said bullet was packed, sealed and handed over to the Police by me; (ii) Fire arm wound of entry No.2 was seen communicating through scalp, through right occipital bone, causing circular fracture of the outer table, beveling edges of inner table of the right posterior cranial fossa, through dura mater, through base of occipital lobe, through base of pituitary fossa, causing fracture (chip fracture) of the angle of left mandible. Coming out through wound No.5 of external injuries; Cri.Appeal No.246/2004 17 (iii) Fire arm wound of entry No.3 seen traversing through the muscles of anterior chest wall, through the axilla, through the left triceps muscles of left arm, bullet retrieved from the left triceps muscles embedded in haematoma; (iv) Fire arm wound at entry No.4 was seen exiting through fire arm wound of exit no.6 traversing the muscles. He, therefore, opined that death was caused as a result of shock following traumatic cranio-cerebral injury. He further opined that apart from the surgical injuries, the other injuries were fire arm injuries. The post mortem report is at Exh.20. He has also stated that the injuries were ante mortem and were sufficient in ordinary course of nature to cause death. He further states that he had handed over the bullets in Form No.2 to the Police for onward transmission to the Chemical Analyzer. Prosecution has examined P.W.7 Kishor Sandu, who performed the surgery for extracting the bullet from the person of P.W.1 Deepak Sawant. P.W.7 Dr.Sandu states that on examination he noticed that there was an entry wound just below the medial canthus, 0.5 x 0.3 cm with abrasion collar. On examination of the hard pallet there was an exit wound 1 cm x 1 Cri.Appeal No.246/2004 18 cm irregular margins. On examination of the tongue he noticed an entry wound 1 cm x 1 cm irregular. There was an irregular margin wound 1 cm x 0.5 cm adjacent to the 2nd molar tooth and adjacent area of the tongue, which was an exit wound. The C.T. scan reveled a bullet lying in the floor of the mouth, anterior to the hyoid bone. The bullet accordingly came to be removed by a surgical procedure by P.W.7 Dr.Sandu. He has opined that the injuries could be caused by the bullet from fire arm and has opined that the injuries were dangerous. The medical certificate is at Exh.27-A. He states that he had handed over the bullet to the Police on the next day. The Analyzer states that bullets had been handed over to him by the Medical Officers, while according to Medical Officers the bullets had been first handed over to the Police for being forwarded to the Analyzer. 6. Charge came to be framed against the accused for offence punishable under Section 302 read with 34 of Indian Penal Code, 307 read with 34 of Indian Penal Code, 302 read with 120B of Indian Penal Code, 387 read with 120B of Indian Penal Code and under Section 3(1) (i) as well as 3 (1) (ii) of the Maharashtra Control of Organized Crime Act, 1999 and under Section 3(2) of the Maharashtra Control of Organized Crime Act, 1999, 3 (4) of the Maharashtra Control of Organized Crime Act, 1999, Section 25 (1b) (4) of the Arms Act read with 27 of the Arms Act, by the Cri.Appeal No.246/2004 19 Special Court on 26.2.2003. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined fifteen witnesses while the Court examined Pramod Misal, Assistant Chemical Analyzer as a Court