.UP 10 2; Draft, newone; -n -PA4 -dFX-NORMAL -y -e; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R .PL60 .HM6 .HE1 #@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA .SP2 ................L.........T.....T.......T.......T.......T.......J IN THE HIGH COURT OF JUDICATURE AT BOMBAY@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA CRIMINAL APPELLATE JURISDICTION.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA CRIMINAL APPEAL NO.141 OF 1989@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA The State of Maharashtra ] Appellant. versus 1. Sanjay Sadu alias Bhau Dalvi] age 23 years, residing at ] Ganesh Teli Chawl, Old Bombay] Road, Thane ] 2. Arun Ashok Nakhate, ] age 20 years, residing at ] Chandra Patil Chawl, ] Old Bombay Road, Thane ] 3. Krishna Shankar Patil ] age 22 years, residing at ] Talav Pali Road, Thane ] 4. Santosh Bhagwan Ambekar ] age 22 years, residing at ] Chandra Patil Chawl, Thane ] 5. Vasant Tukaram Dalvi ] age 22 years, residing at ] Subhash Khande Chawl, ] Kharkar Ali, Thane ] 6. Ajit Mukund Joshi ] residing at near Vaidya ] Vakhar, Raghoba Shankar ] Respondents. Road, Chandani, Thane ] Mr.V.B.Konde-Deshmukh, APP, for the State. Mr.S.V.Kotwal, advocate appointed for the respondents/accused. ALONG WITH@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAA CRIMINAL APPEAL NO.985 OF 1988@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Ajit Mukund Joshi ] at present in Thane Central ] Prison Res.Near Vaidya Vakhar, ] Raghoba Shankar Road, Chendani ] Thane, Dist.Thane ] Appellant. versus The State of Maharashtra ] Respondent. Mr.S.V.Kotwal, advocate appointed for the appellant/accused. Mr.V.B.Konde-Deshmukh, APP, for the State CORAM : D.G.DESHPANDE@@ AAAAAAAAAAAAAAAAAAAAA V.K.TAHILRAMANI JJ.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA DATED : MAY 05, 2006.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA JUDGMENT : [PER D.G.DESHPANDE,J.]@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA 1.‰ These two appeals are arising out of a judgment dated 4th November 1988 passed by the VIth Additional Sessions Judge, Thane where original accused No.6 Ajit Mukund Joshi was found guilty of an offence punishable under section 467 of the Indian Penal Code and was sentenced to suffer R.I. for ten years and to pay a fine of Rs.5000/- i/d to suffer S.I. for six months. Other accused were acquitted of the offences under Sections 120-B, 364 r/w 34, 302 r/w 34 of the Indian Penal Code, so also the original accused No.6 was also acquitted of all those offences. Therefore, the State has filed Appeal vide Criminal Appeal No.141 of 1989 against acquittal of the accused and, Original Accused No.6 filed Appeal vide Criminal Appeal No.985 of 1988 against his conviction under Section 467 of the Indian Penal Code. 2.‰ The case of the prosecution, on the basis of which the aforesaid impugned judgment came to be delivered, is as under :- .‰ One Shri D.L.Marathe was the person who came to be murdered between 9 to 9.30 p.m. on 13.2.1987 and who was occupying a room in building known as Vinodwadi CTS No.26-C, situated at Ghantali, Naupada, Thane. Original owner of the said building was one Vinod who died in 1984. After his death, his widow Saraswatibai and three sons including Ganesh (PW 6) became the owners of the said property. By an agreement dated 14.6.1985 the said property was entrusted for development with M/s.Nishit Builders and Developers, Thane. There were four partners of the said firm. One of them was original accused No.6 Ajit Joshi. All these persons including accused No.6 and one K.B.Pangaonkar were negotiating with all the occupants of Vinodwadi for accepting alternate accommodation in the proposed construction either on tenancy or on ownership or to give their rights by accepting monetary advantage. The said property Vinodwadi was consisting of two buildings or chawls having 32 tenements in all. Deceased D.L.Marathe was in occupation of a room bearing Room No.1 as a tenant in one of these two buildings. One Mukund Sant (P.W.2) was in occupation of room No.2 adjoining to the room occupied by deceased Marathe. 3.‰ According to the prosecution, deceased Marathe was insisting that in the new premises he should be given space equally to one in occupation. The builders including accused No.6 were refused to do so and, therefore, they conspired together with the help of others to eliminate Mr.D.L.Marathe and also to get a document pertaining to surrender of tenancy right executed from Marathe either by coercion or by whatever means possible. 4.‰ On the date of incident 13.2.1987 accused had hired one rickshaw of Arun Teli (PW 3) between 8 to 8.30 p.m. This hired rickshaw was done by accused Nos. 2 to 5. This rickshaw was reached at Jambhali Naka at about 8.45 p.m. from where another rickshaw of Dilip Pathakji (PW 1) came to be hired on the pretext that an old person was to be taken to hospital. 5.‰ Then accused Nos. 1, 3 and 5 sat in the rickshaw of Dilip Pathakji and accused Nos. 2 and 4 sat in the rickshaw of Arun Teli (PW 3). He turned hostile in his evidence). He was asked to led his rickshaw on old Bombay Agra Road and Dilip Pathakji was asked to follow him. Both these rickshaws were stopped at the end of by-lane leading to Shubhamkaroti Hall, near New English School. The accused who were sitting in the rickshaw of Dilip Pathakji (PW 1) got down and went towards the by-lane and within a short time they came back lifting victim D.L.Marathe. He was forcibly dumped in the rickshaw of Dilip Pathakji. Then P.W.1 Dilip Pathakji was forced to drive his rickshaw at the point of knife on his back. 6.‰ On the way, victim Marathe was crying and shouting that he should not be assaulted and be relieved. Dilip Pathakji was threatened not to turn behind and to proceed ahead. When the rickshaw reached at the junction of Edulji road, Dilip Pathakji (PW1) noticed blood stains on the wind-screen of his rickshaw. He, therefore, stopped his vehicle and asked the accused persons to engage another rickshaw. Immediately he left his rickshaw, crossed the road and waited for the accused to get down from his rickshaw. When he returned back within a few minutes, the accused persons ran away and deceased Marathe was lying in a pool of blood in his rickshaw. 7.‰ In the mean time, when deceased Marathe was being lifted and taken in rickshaw, one Alka Bhaghwat (PW 3), who was residing opposite to Vinodwadi, gave a ring to the police control room and gave a message that one man was being lifted forcibly. Therefore, PSI Choudhari from Naupada Police Station, who got the message, rushed to the spot. By that time, Dilip Pathakji (PW 1) had brought the victim Marathe to that spot near Shubhamkaroti Hall in a injured condition. Then as per the advice of PSI Choudhari, PW 1 Dilip Pathakji took victim Marathe to Civil Hospital where he declared dead. Thereafter Dilip Pathakji lodged a FIR vide Exhibit 17 to the Naupada Police Station. The matter was investigated. Incriminating articles from Dilip Pathakji or from his rickshaw were seized under a seizure panchanama. Blood stained earth and blood from the junction of Edulji Road was collected. Denture as well as pair of chappal of deceased Marathe, lying in rickshaw, was also seized. 8.‰ On the next day morning, accused Nos. 1, 3 and 4 were arrested along with accused No.2. Their clothes were recovered, so also accused No.6 was arrested. The clothes of deceased Marathe were also recovered under a panchanama. Statements of witnesses were recorded. Specimen of handwriting of accused No.6 was taken under panchanama. Knife was recovered at the instance of accused No.1 and other documents, necessary for investigation, were also collected and seized. Articles were sent to the Chemical Analyzer. Hand Writing of Marathe and the specimen of hand writing of accused No.6 were also sent to hand writing expert because it is revealed during investigation that accused No.6, in particular, was claiming that deceased Marathe had executed a document of surrender vide Article 23. After receiving reports of C.A. and Hand Writing Expert, a charge sheet was filed and the charges were framed by the Sessions Court. 9.‰ The prosecution examined 18 witnesses in order to prove guilt of the accused. The defence of the accused was of total denial and, according to accused No.6, deceased Marathe had executed Article 23 in his presence and in the presence of attesting witnesses and there was no forgery. The trial Court disbelieved the prosecution case so far as conspiracy and murder is concerned. But the trial court found that accused No.6 only was guilty under Section 467 of the Indian Penal Code and convicted him and acquitted others as stated above. Hence these two appeals. 10.‰ The trial Court acquitted the accused of the charges of murder and conspiracy on the ground that P.W.1 Dilip Harihar Pathakji, though had given full description of the incident, he did not name any of the accused in his evidence, though he had given their names in the FIR along with description. Therefore, according to the trial Court, this evidence of P.W.1 was of no use to the prosecution. 11.‰ The evidence of Alka Ramchandra Bhagvat (PW 3), who immediately informed the control room, was also, according to the trial Court, of no use in identifying the accused. Admittedly, P.W.5 - Arun Teli turned hostile fully and did not support the prosecution at all. Therefore, his evidence was not rightly considered. Regarding forgery by accused No.6, the trial Court found him guilty, but for want of other evidence acquitted all the accused of the charges of conspiracy and murder etc. as per the judgment of the trial Court. 12.‰ So far as death of Marathe is concerned, it was not challenged before us by the accused that Marathe died homicidal death. There were as many as 19 injuries on his person and, they were ante-mortem and, therefore, it has to be taken for prosecution as proved that Marathe died homicidal death. .‰ Learned APP for the State contended that the trial court erred in acquitting the accused of the charges of conspiracy and murder. According to him, the evidence of P.W.1 and 3 coupled with the fact of forgery of document by accused No.6 was sufficient for the court to come to conclusion about existence of conspiracy and, in any case, those of the accused, who were travelling of P.W.1 Dilip Pathakji, were liable to be convicted because number of injuries on the person of deceased Marathe clearly shows that he was assaulted by all three persons travelling in that rickshaw. 13.‰ As against this, learned counsel for the accused contended that if P.W.1 Dilip Pathakji was unable to name the accused in his evidence before the Court and, when admittedly, the FIR cannot be used as a substantive piece of evidence, naming of accused in the FIR by P.W.1 is of no consequence and, in the absence of identification, the accused were rightly acquitted. .‰ So far as accused No.6 is concerned, it was strenuously urged before us by learned counsel for the accused that there was no evidence of conspiracy and it was proved that Marathe had signed Article 23 before his death. He also pointed out that the evidence of hand writing expert was not conclusive to come to the conclusion that it was accused No.6 who had forged the signature of Marathe and, therefore, according to him, the State appeal was liable to be dismissed and, the appeal filed by accused No.6 was liable to be allowed. 14.‰ Since the conspiracy is main thing in this case, because it gives motive to the accused, according to the prosecution, it is necessary to find out what the evidence of conspiracy is ? It is an admitted fact that and, there is no challenged that Marathe was occupying one of the rooms in Vinodvadi, that building was previously owned by one V.N.Vinod and after his death his widow Saraswatibai and three sons including Ganesh (PW 6) became the owners of the said property. It is also an admitted, and not disputed, fact that by an agreement dated 14.6.1985 the said property was entrusted for development to M/s.Nishit Builders and Developers, Thane, and accused No.6 was one of the partners with other partners K.B.Pangaonkar, Kantilal Manilal Bauva, Kantilal Manilal Shah etc. There is also no dispute that the builders were negotiating with the tenants in the said property for getting the property vacated by giving them alternate accommodation or compensation. About the attitude of Marathe, we will have to go through the evidence on record. The prosecution has examined P.W.2 Mukund Sant who was also residing at Vinodwadi. He has stated that the property was previously owned by one V.N.Vinod and after his death his son Rajiv was managing the said property and one year before his deposition in Court the property was given for development to one Nishit Builder of whom the aforesaid partners were there including accused No.6 Ajit Joshi. He has also stated that accused No.6 was used to visit the work on site and also collect the rent from the tenants. Some of the tenants had left the tenements by accepting money from the builder. This witness P.W.2 was tenant in room No.2 which was adjoining to Room No.1 where deceased Marathe was staying. It means, this P.W.2 was the direct and most nearer neighbour of deceased Marathe. Marathe was unmarried. P.W.2 further stated that accused No.6 or Pangaonkar of Nishit Builders used to hold talk with tenants about vacating or shifting the premises. He also stated that Marathe told him that accused No.6 Ajit Joshi was visiting to Marathe in that connection and a proposal was given to deceased Marathe for shifting in the premises of one Patvardhan, but Marathe told P.W.2 that he was not inclined to accept that proposal because the premises offered to him were comparatively lesser area. Marathe also told him that he asked Joshi to give his proposal in writing and that Marathe should not be disturbed and harassed again and again on that count. Then this witness (PW 2) stated about some incident, which will be discussed subsequently. .‰ Cross examination of this witness (PW 2) does not show that this part of his testimony is wrong. Certain omissions were brought on record. But those omissions do not affect the main testimony that Nishit builders were, for getting the premises vacated, approaching each of the occupants with different promises and, Marathe was not ready to accept the promise given to him. 15.‰ P.W.4 Dattatray Pralhad Karve, who was relative of deceased Marathe i.e. Marathe was the son of his maternal aunt. He has stated that in June 1986 Marathe told him that the property Vinodvadi was given by the landlord to the builder and one Joshi, the partners of the firm, was looking after the work of development. This witness (PW 4) also stated that Joshi used to see Marathe in this connection and Marathe was fade up with the frequent visits of Joshi and told him that Joshi should give him in writing whatever proposal was. The witness, thereafter, stated that in November 1986, Marathe told him that Marathe had received a letter from builder asking him to shift in the premises of Patvardhan but Marathe had refused the said proposal on the ground that he should be given premises of equal dimension which were occupied by him. Then this witness supports the incident that took place at night about which P.W.2 Mukund Sant has stated. We will be discussing that incident separately. Thereafter this witness (PW 4) has stated that Marathe told four days after the said incident that Joshi - accused No.6 had come to see Marathe and Joshi expressed his shock about the night's incident. Witness states that Marathe expressed doubt and suspicion against Joshi as a person behind that incident. .‰ In the cross examination also the main fact that the builder was insisting upon Marathe and others for vacating the premises is not at all challenged or disputed. Omissions are brought on record but they are of no consequences so far as this aspect of the matter is concerned. 16.‰ The prosecution has examined the owner of the property Ganesh Vinayak Vinod (PW 6). He has stated about his ownership of the property, his agreement with Nishit builders on 14.6.85 and that, notice issued by the builders to the tenants. He has proved one of the last notice. He identified the hand writing of D.L.Marathe at Exhibit 23. He has stated thereafter about the meeting of the tenants and the owners including he himself and his brother; then giving of letter to the tenants on 16.6.1985; serving of the notice upon other tenants including Marathe and signature of Marathe at Exhibit 24. .‰ Then this witness (PW 6) has stated that on 13.2.1987 at about 8 to 8.30 p.m. Ajit Joshi - accused No.6 (the builder) came to him and told him that Marathe was going to vacate the premises on that day itself. Then again between 9 to 9.30 p.m. Joshi accused No.6 came and showed him an agreement and asked him whether Ganesh (P.W.6) would sign it as witness. It was an agreement purported to be executed by Marathe in favour of builder. P.W.6 Ganesh signed the document as a witness in good faith. But he has categorically stated that deceased Marathe did not execute the document in his presence. In this manner Article 23 came on record. He admitted his signature and specifically stated that signature of D.L.Marathe on the said document was not done in his presence. .‰ Cross examination of this witness is not resulted in disproving the prosecution case to the effect that V.N.Vinod and after his death his widow and three sons were the owners of the property Vinodvadi where deceased Marathe was living; the property was given for development to Nishit Builder of which accused No.6 was partner; that builders were insisting upon the occupants to vacate the premises and they had approached Marathe for this purpose, offering a block in the premises of one Patvardhan and Marathe had refused to vacate his premises on the ground that the Patvardhan's premises were lesser in area. The evidence of these three witness also shows that Marathe was disgusted with the frequent visits and that aattempts were being made to frighten him. 17.‰ This aspect of the matter, giving rise to the strong motive for the builder, has not been considered by the trial Court in proper perspective. In fact no importance at all is given by the trial Court to this aspect which has resulted in mis-appreciation of fact of miscarriage and justice. 18.‰ Once it comes on record, as stated above, that Marathe was reluctant to vacate the premises and was fade up with the persuasion by the builders, then the story of prosecution regarding motive and conspiracy needs to be considered. At this juncture Article 23 plays a vital role. Because it is an agreement obtained by the builder - Accused No.6 and it purported to have been signed by Marathe at two places in token of having execution of agreement and having received Rs.50,000/-. 19.‰ So far this Article 23 is concerned, it is this witness Ganesh (PW 6) who has given the evidence in Court. He was very specific and assertive in stating before the court that when the agreement was signed by him as a witness Marathe was not present, that Marathe did not execute the agreement in his presence and, Joshi - accused No.6 represented that it was signed by Marathe. In fact this witness has stated that he raised his objection before Joshi about the signature of Marathe, because witness knew that Marathe used to sign in Modi script. However, Joshi told him (PW 6) that Marathe had signed the document and it was the signature of Marathe. This witness (PW 6) has also stated that the transaction of payment of Rs.50,000/- to Marathe, as per Article 23, did not take in his presence. 20.‰ It is pertinent to note that Article 23 is dated 13.2.1987 . Signature of Ganesh (PW 6) was obtained on it between 9 to 9.30 p.m. and, murder of Marathe took place on the same night of 13.2.1987. If Marathe had really and in fact signed this agreement and received Rs.50,000/-, then there was no need for the accused No.6 for any kind of apprehension that Marathe will not vacate the premises. But if Marathe had not signed Article 23 and it is forged regarding signature of Marathe then that gives strong motive for the accused to enter into conspiracy for eliminating Marathe Because attitude of Marathe was of resistance and in any event it would be proper to presume that the builders wanted Marathe to vacate the premises at any costs. 21.‰ When witness P.W.6 - Ganesh has clearly stated that Marathe did not sign in his presence in either of the two places on the document; that Marathe was not present at that time and no transaction of giving Rs.50,000/- to Marathe took place in his presence, then burden heavily shifts upon accused No.6 to prove that Marathe had executed the document (Article 23), that Marathe had signed it on two places and that Rs.50,000/- was given to Marathe by accused No.6. 22.‰ The Prosecution has examined one Subhash Dattatraya Dabke (PW 8). However, he turned hostile obviously because accused No.6 Ajit Joshi was his brother in law. Joshi - accused No.6 was running a xerox-typing centre. This witness (PW 8) was working there as a typist. His real younger sister was given to accused No.6. He was examined because, according to the prosecution, and earlier statement to the police by this witness in which he had stated that on 13.2.1987 accused NO.6 came to his residence and told him that settlement had arrived at between him and Marathe and, that he signed Article 23 at Sr.No.2 as witness at the instance of Joshi. He contradicted with his earlier statement. In the cross examination on behalf of accused No.6, this witness (PW 8) admitted that on 13.2.1987, at about 8.15. p.m. when Joshi was present in the shop, Marathe had came there, signed Article 23 in his presence and Joshi paid him Rs.50,000/-. These admissions, brought out in the cross examination of this witness, are of no use to the defence. Firstly because witness is closely related to accused No.6. Secondly, he has turned hostile and resile completely from his earlier statement. .‰ So far as cross examination of P.W.6-Ganesh is concerned, certain omission was brought on record with reference to his statement that he could not assign any reason for the omission in his statement before the police that he told accused No.6 Joshi about disparity in signature of Marathe on said document Article No.23 as it was usual practice of Marathe to sign in Modi script. In the cross examination there is one more suggestion which is denied. But the suggestion is very important wherein the witness denied that he had not signed Article 23 as witness in good faith and he signed it because he was sure that it bears signature of Marathe. There is no suggestion at all to this important witness by any of the accused and particularly accused No.6 that he signed the document in presence of Marathe or that in his presence Rs.50,000/- were given to Marathe. 23.‰ Statement of Accused No.6 under Section 313 of the Criminal Procedure Code was recorded by the trial Court. He was confronted with the evidence of P.W.6.that neither Marathe signed the document nor received Rs.50,000/- and, accused No.6 told the witness P.W.6 that Marathe signed the document and it was signature of Marathe. To this question, accused No.6 replied that it is true and he had obtained signature of P.W.6 by going to the house of P.W.6. When Question No.39 was put to accused No.6 as, whether accused No.6 wants to say anything more?, accused No.6 nowhere told, when this document was obtained from Marathe in the presence of both these witnesses and in their presence Rs.50000/- were paid to Marathe. Last Question was put to accused No.6 as Question No.42 that as per the evidence of P.W.6 Ganesh, accused No.6 had