[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 570 OF 1999 CRIMINAL APPEAL NO. 570 OF 1999 CRIMINAL APPEAL NO. 570 OF 1999 WITH WITH WITH CRIMINAL APPEAL NO. 496 OF 1999 CRIMINAL APPEAL NO. 496 OF 1999 CRIMINAL APPEAL NO. 496 OF 1999 CRIMINAL APPEAL NO. 570 OF 1999 1. Abdullah Mehboob Sarguru R/o of Mumbai. Currently lodgedat Yerwada Central Jail. 2. Izaz Shabbir Hussain Sayyed Residing at A-31, 203, Shriprasad Colony, Nala Sopara, (East), Dist. Thane and currently lodgedat Yerwada Central Jail. 3. Mirza Arif Baig alias Jacky Azam Baig Residing at 27, Mohmmad Ali Road, Mochi Chawl, 2nd floor, R.No.41,Mumbai and currently lodged at Thane Central Jail. 4. Jahagir Alia Shabuddin alias Shabu Kalbe Hussain sheikh, R/o Red Rose Apartment, 2nd floor,R.No.9, Opp. Kausa Masjid, Mumbra, Dist. Thane and currently’ lodged at Thane Central Jail. 5. Anwar Abdulla Sarguru R/o Mumbai and currently lodged at Yerwada Central Jail. .. Appellants (Orig.accused Nos.1,2,3,4 and 7). V/s. The State of Maharashtra. ..Respondents. [2] Shri H.H. Ponda Sr.Advocate with Shri Shrish Gupte, Sr.Advocate with Shri S.V. Marwadi for the appellants. Mrs. P.H. Kantharia,A.P.P. for the State. CRIMINAL APPEAL NO.496 of 1999 1. Satish L. Gawte, R/o Flat No,. 504, Mahan Palace, near Lassi Hall,Ulhasnagar, Thane. 2. Suryaji Sawant (Dead) Residing at Old Police line, New Buld. No.C/19, Thane (W), Thane. .. Appellants (Orig.Accused Nos. 5 and 6) Vs. The State of Maharashtra. . Respondent. Shri Shrish Gupte,Sr. Advocate with Shri B.G. Tangsali for the appellants. Mrs. P.H. Kanthari,A.P.P. for the State. CORAM : V.G.PALSHIKAR & CORAM : V.G.PALSHIKAR & CORAM : V.G.PALSHIKAR & ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. DATE : 27TH OCTOBER, 2004. DATE : 27TH OCTOBER, 2004. DATE : 27TH OCTOBER, 2004. ORAL JUDGMENT (PER ANOOP V. MOHTA) . These appeals are against the judgment and order dated 20th August, 1999, passed by the Sessions Judge, Mumbai, whereby, all the accused have been convicted under section 302 r/w Section 34 of Indian Penal Code (I.P.C.) and Section 120B r/w Section 34 of I.P.C. and also under Section 225 r/w section 34 of I.P.C. They [3] have been sentenced to suffer imprisonment for life. They have also been imposed with a fine of Rs. 10,000/- each and directed that sentences to run concurrently. Therefore, Criminal Appeal No. 570 of 1999, by accused Nos. 1 to 4 and accused No.7 and Criminal Appeal No. 496 of 1999, by accused No.5 and accused No.6 (now dead), against the common Judgment and Order. 2. FACTS;- FACTS;- FACTS;- All these 7 accused were charged under Sections 302, 120B and 225 of I.P.C. along with 8 others, for hatching conspiracy and facilitate to escape, from the legal custody of the police, one Phiroz Abdula Kokani and for that to murder a Police Head Constable Bhalchandra Kardile (hereinafter deceased). The place of occurrence, was near O.P.D. building, opposite Department of radiology, in the compound of Sir J.J.Hospital (hereinafter J.J. Hospital), Byculla, Mumbai-400 008. The said, Phiroj Abudla Kokani was detenue under Terrorist And Disruptive Activities (Prevention) Act, 1987 ( for short TADA Act). 3. On 6/5/1998 at about 12.30 p.m. Police constable (P.W.2), Shivaji Awati, P.S.I., S.L. Gawte [4] Accused No.5 (for short A 5), deceased Kardile, P.C. Parad, P.C. Sawant, Accused No.6 (for sort A6) and motor driver Mahadik of Van No. MH-12-M-4048 brought Phiroz Kokani and Salim Abdul Razak Beg, for medical treatment to the J.J. Hospital. The said vehicle was parked at J.J. Hospital compound. P.S.I. Gawte ( A5) had service revolver, P.C. Parad, H.C. Kardile ( the deceased), P.C. Awati had only one carbines. 4. On same day at about 3.45 p.m. the said prisoner along with specific Officers with specified duties were accompanying from Thane Jail to the Hospital, for medical treatment. As per the prosecution firing took place in the place of occurrence and the deceased died, as a bullet hit him. 5. Phiroz Kokani was taken to the 5th floor by P.S.I. Gawte, P.C. Parad and P.C. Shirsat and Salim Beg was taken to Ward No.4 by Awati (P.W.2), the deceased and Sawant (A6). All were moving around for treatment from 12.30 p.m. At about 3 P.M. P.S.I. Gawte (A5) went to ward No.4 and at that time Phiroz Kokani was sitting in prisoner’s Van. P.S.I. Gawate [5] sent Awati (P.W.2) and the deceased for their meals near the van and accordingly, Awati, (P.W.2) and the deceased went. Thereafter, P.C. Parad and Shirsat were sent, as replacement. Phiroz Kokani during this period was in the police van. At that time Awati handed over his Carbine to Shirsath. After some time Sawant (A6) returned from Ward No.4 and around that time Phiroz Kokani wanted to go to toilet to ease himself therefore, Sawant (A6) had removed his handcuffs and took him along with Awati and the deceased to the toilet in the O.P.D. The toilet was found locked, therefore, they came back and were waiting on the road for P.S.I. Gawte. Phiroz Kokani was standing near the door of the van and was surrounded by on three sides by the deceased, Sawant (A6) and Awati (P.W.2). 6. At about 3.45 p.m. a person fired at (the deceased) Kardile and a bullet hit him. The deceased fell down. (P.W.2) Awati, another constable removed the carbine from the neck of the deceased and chased the assailant at gate No.6, who had fired at the deceased and also . Awati P.W. 2, claimed to have seen Phiroz Kokani sitting as a pillion rider on a running [6] motorcycle and fled away from the spot towards Noor Baug. P.W.2 (Awati), as well as, other constables could not chase those persons, as another person standing near the gate No.6 had also fired on him. As per prosecution’s case, all these persons, who had fired escaped, from the scene. A6 did not chase any one. He was only standing near the Van. P.W. 2 (Awati) came back and found the deceased absent from the spot, as he was shifted to Ward No.4 by (Sawant) A6 and Mahadik. After noting all the information, the police machinery had commenced their investigation. The spot panchanama was recorded including of the van and the surrounding area at about 5.45 P.M. They found two pieces of fired shell on the spot. Based on the information gathered from P.W. (Awati). The statement of P.S.I. Salunke, P.W. 10, was recorded by P.W. 16 and was treated as F.I.R. As per the prosecution, they had arrested police officer P.S.I. Gawte (A5) and (A6) Head Constable Sawant, as some incriminating aspects were found in the conduct of these officers. The entire police team was interrogated. P.W 3 another eye witness Sachin whose statement was recorded on 7/5/1998. P.W. 3 was on the scene of occurrence near gate No.6, at the relevant [7] time, as he had brought his pregenent wife for sonography at Sion, as he is also resident of Sion Mumbai. P.W. 3 had witnessed 4 persons with pistol running from the spot of occurrence through the gate No.6. 7. On 3/6/1998 accused No.1 was arrested by the police. On 14/7/1998 the custody of accused Nos. 2 to 4 were taken from the Railway Police, C.S.T., Mumbai. Accused 5 and 6 were arrested. On 19/8/1998, accused No.7 was also arrested and was transferred from Goregaon Police Station. The Investigating Officer, after due panchanma and formalities, sent the material for the chemical analyser’s report.There was no recovery of any arms and or weapons. The necessary reports were received. Dr. Bawiskar examined and submitted the post-mortem of the deceased Exh..... The necessary charges were filed against the accused Nos. 1 to 4 on 25/68/1998 and on 1/8/1998 against accused Nos. 5 and 6. The Charge-sheet was filed against accused No.7 on 9/11/1998. All the accused denied the charges framed against them. The necessary statements were recorded of the accused. The prosecution has examined 16 witnesses. [8] These witnesses are as under. P.W. 1 Sanjay Bhimrao Salunke whose statement was recorded under Section 154 Cr.P.C. and treated as F.I.R. and who has assisted P.W. 16 in the investigating of the case. P.W. 2 Shivaji Bhimaji Awati, who was on duty as Police escort on Prisoner’s van at J.J. Hospital on the date of the incident and one of the eye witness to the incident i.e. on 6.5.1998. P.W. 3 Sachin Sadashiv Marshilkar, eye witness to the incident on 6.5.1998. P.W. 4 Devkinandan Motiram Bawiskar, Medical Officer on duty who at the relevant time was attached to Central Jail Hospital who has spoken about Phiroz Kokani being referred to J.J. Hospital for his ailment and medical examination on 5.5.1998. [9] P.W. 5 Dattajirao Shankarrao Ghorpade, who at the relevant time was a Jailor attached to Thane Central Prison who has deposed about the under-trial Phiroz Kokani being relieved from the jail to proceed under escort to J.J. Hospital. P.W. 6 Kashinath Pandurang Gurav who was in charge of the armoury at the relevant time . He has spoken about the handing over of handcuffs carbine etc. to the Police personal in this case. P.W. 7 Mohd. Shabir Ismail Rindani who on the relevant date went to meet the undertrial Phiroz Kokani at J.J. Hospital. P.W. 8 Pramod Tukaram Patade, SEM who has conducted the identification parade in this case. P.W.9 Pradip Kalimohan Singhi, acted as panch in this case for scene of offence. [10] P.W. 10 Arjun Laxman Chavan, who was working as a Clerk in the Thane Central Prison at the relevant time forwarded the under trial Phiroz Kokani to the police escort team for treatment to J.J. Hospital on 6.5.1998 as per the orders of TADA Court, Mumbai. He has deposed about the undertrial Phiroz Kokani not returning to the Jail on that date. P.W. 11 Madhukar Laxman Salunke who has spoken about the duties assigned to escort party he being the escort in charge. P.W. 12 Dr. Vithalrao Narayanrao Dabre, R.M.O. of J.J. Hospital. P.W. 13 Lotal Sakharam Shirsath attached to Thane Police Head Quarters at the relevant time. He escorted the prisoners including Phiroz Kokani on the date of incident i.e. 6.5.1998. P.W. 14 Shashikant Eknath Shinde, Deputy [11] Commissioner of Police who was assigned the work of supervision at the Head quarters arranging for escort of prisoners and issued circular. P.W. 15 Bhujang Shankar Mohite, Commisisoner of Police who has granted sanction to the prosecute- P.S.I. Gawte, and H.C., Sawant accused Nos. 5 and 6-- respectively vide sanction order dated 31.7.1998-- P.W. 16, Mohd Javed Abdul Rashid who was on duty as P.I. at J.J. Marg Police Station on the date of the incident i.e. 6.5.1998. 8. The learned Judge, after considering the entire material on the record, convicted the appellant-accused Nos. 1 to 7, out of 15 accused. Three accused have been reported to be dead and other 5 accused are still absconding. The accused No.6 died pending the appeal. Therefore, appeal against accused No.6 is abated. One Salian @ Dany who was amongst three assailants, also died pending the trial. He was a relevant person to establish prosecution’s case. [12] 9. The learned Sessions Judge held that the death of the deceased was due to firing at him, near the police van bearing No. MH 12 W 4048 and near gate No.6, J.J. Hospital, Mumbai. The death of the deceased (Kardile) was homicidal. Accused Nos. 1 to 7 were held responsible for the death of the deceased. It is also held that there was a criminal conspiracy by the present accused and others, and by firing at the deceased a commotion was created and taking advantage thereof, said Phiroz Kokani escaped from legal custody of the police. It has also been held that the entire gamut of the conspiracy was the culmination of meeting of minds to gain the above objectives. It is also held that there was subversion of lawful authority at the time of firing at the deceased, which consequently made Phiroz Kokani to escape. The learned Judge therefore, held that the offences have been committed by each of the accused Nos. 1 to 7 and accordingly, convicted and punished. 10. Heard the learned Sr. Counsels for the appellants and Mrs. P.H. Kantharia, learned A.P.P.for the State. We have been taken through the record of the [13] proceeding. We have gone through the testimonies of the witnesses and the relevant documents with the assistance of the Counsels appearing for the parties. 11 REASONING:- REASONING:- REASONING:- The prosecution story and the conviction in question are mainly based upon the P.W. 2 (Awti), P.W. 3 (Sachin). P.W.2 was a police constable at the relevant time, who had surrounded Phiroz Kokani along with the deceased (Kardile) P.C. Sawant-accused No.6 (now dead) at the relevant time. P.W. 2 has deposed that the deceased ( Kardile) got injured, as one Salian (now dead) had fired at him. P.W. 2 has deposed that as the deceased fell down, he removed carbine from his neck and chased that person i.e. Salian @ Dany. P.W. 2 has further deposed that he had chased two persons, one who fired i.e. Salian @ Dany and the prisoner Phiroz Kokani who ran away towards Noor Bag. P.W. 2 after some chase returned as both the persons ran away and escaped. P.W. 2 has nowhere deposed about the other 4 persons, who ran away from the spot. and or even referred to any other accused, who fired the shots if any, except deceased Salian @ Dany. Therefore, as per this witness itself, the deceased (Kardile) had [14] succumbed to the said bullet injury. The murder was committed only by Salian, (now dead ). He has not deposed about any other person or accused. He had identified the dead body of Salian @ Danny on 28th June, 1998. On 22/7/1998 he was again called to J.J. Marg, (Morgue) to identify another dead body. This witness had identified accused Nos. 2 and 4 in the Court. There was no reference made about the specific role played by these accused and specially of A2 to A4. There was no reference made of accused No. 1 and 7 in his deposition.Therefore, there was no cross-examination by accused Nos. 1 and 7. P.W. 2 was suspended from 29th May, 1998, because of the incident in question. P.W. 2 has also deposed that he had not mentioned about the firing by the said Salian at him. This witness has no where supported the prosecution case beyond identifying the role played by Salian, who had fired and killed the deceased. Even though this witness had identified the accused No.5, 6, 2 and 4 in identification parade, it nowhere connects the offence as alleged by the prosecution against all the appellants accused Nos. 1 to 7, as he had positively deposed and identified the person who had killed the deceased. [15] There are no other corroborating witnesses to this, except P.W.3, even as per the prosecution case. 12. P.W. 3, who had been to J.J. Hospital for Sonography of his pregenant wife, and was about to enter gate No.6, he heard pistol shots. This wintess had also identified the dead body of assailant of the deceased on 20th June, 1998. This witness has also in the identification parade on 22/7/1998, identified the accused Nos. 2 and 4. We have gone through this testimony of P.W. 3 and we find that this witness is full of contradictions and therefore, unreliable. There is no proof on the record to show about their visit to J.J. Hospital. He was in the hospital upto 6 p.m. on that day. But his statement was recorded on 7/5/1998. There was no reference also about motorcycle on which P.W.2 chased the assailants. P.W. 3 has deposed that he had heard pistol shots, when he was entering the gate No.6 of the Hospital, at about 3.40 to 3.45 p.m. He saw three persons holding pistols running towards him. He also saw a constable lying injured. Those three persons when reached near gate No.6, haulted for a moment and again fired at constable. This witness has deposed that [16] the deceased (Kardile) was lying injured when constable P.W. 2 had removed carbine from the neck of the deceased and went towards the assailants. This witness has further deposed that he saw P.W. 2 chasing two persons armed with pistols who were riding on motorcycle. This witness had also chased them for some distance. The said motorcycle went towards Dongri. P.W. 3 has deposed that P.W. 2 stopped one motorcycle and rode towards the assailants. This witness came into picture, after the injury of the deceased and when Salian and Phiroz Kokani were running away. There was no case of the prosecution or even of P..W. 2 that Phiroz had a pistol in his hand. There is no material to show that this witness had allowed the assailant and Phiroz to escape and then chased them. If this witness, was on the spot at the relevant time he saw P.W. 2 chasing these two persons. There is no mention about the role of accused No. 2 and 4 at this stage on the spot of occurrence. It means only two person fled away on motorcycle, as there was no reference about three persons on the motorcycle by P.W. 2, although P.W.3 has deposed that he saw accused no. 2 (Ijjaz), who was driving the motorcycle on which two persons escaped. [17] 13. P.W. 3’s statement was recorded by the police. This witness has identified accused No.2, driver of the motorcycle, and the second person i.e. accused NO.4 who was talking with with the accused No.2. It is not clear when and where they were talking to each other. There is clear contradictions in between P.W. 2 and P.W.3 in reference to the no. of persons, who were running towards him and rode on the motorcycle. P.W. 2 has deposed that he had chased assailant Salian and Phiroz who rode on the motorcycle and fled away. The prosecution and P.W.2’s case was that Phiroz with unknown persons fled away on motorcycle. There is contradiction between P.W.2 and P.W. 3 also. This P.W. 3 has deposed that he heard voice of injured constable and thereafter, they took the deceased to the casualty department. On 22/7/1998, he identified accused Nos. 2 and 4 in the identification, parade. This P.W. 3 in his cross-examination has has been unable to explain the absence of the reference of motorcycle in his police statement. He has also been unable to explain, why he could not tell to the police that P.W. 2 had stopped the motorcycle and rode over to chase the assailants and [18] said Phiroz Abdula. This witness has further deposed that there was no much traffic on that road. His pregenent wife during this time was in a nereby hotel. His wife was not examined. 14. There are various contradictions and improvements in the evidence of P.W. 3 in reference to the evidence of P.W.2. As per P.W. 3 there were three persons who fired at the deceased and injured him and thereafter four persons ran out of the gate No.6 and not only two as deposed by P.W. 3. There is no reference made to what happened to other absconding 2 persons. P.W. 2 (Awati) has nowhere deposed that he chased those assailants by a motorcyle upto Noor Baug, but could not succeed in arresting them. P.W. 3 has further deposed that P.W 2 (Awati) while chasing on the road stopped the motorcycle and rode on in and chased the two assailants. There are discrepancies in reference to the details of alleged accused or assailants as given by P.W. 2 and P.W. 3. Therefore, it is P.W. 3, who had given specific role only to accused Nos. 2 and 4, and not to any other, who along with other accused alleged to had hatched conspiracy and helped Phiroz Kokani to escape. [19] The prosecution has attempted to connect all these accused 1 to 7 and specially accused Nos. 2 and 4 with the crime in question based on the evidence of these two witnesses. P.W. 2 as noted above has nowhere attributed any role to these accused specially of accused Nos. 2 and 4 in his testimony connecting them with firing at the deceased and or at him. There are no other testimonies or witnesses to support the positive case and or evidence against the accused Nos. 2 and 4. The identification by P.W. 2 and P.W. 3 of accused Nos. 2 and 4 in the identification parade after one and half months, itself cannot be sufficient foundation to convict the accused under section 302 r/w section 120B, as done in the present case. We have also noted that P.W. 2 has no where mentioned any thing about Phiroz Kokani, when he ran out of the gate No.6. P.W. 3 has also been unable to connect the manner in which accused No.2 or 4 helped Phiroz Kokani to escape on motorcycle and further that person who sat on the pillion of motorcycle with gun was Phiroz Kokani and no one else. No other corroborating evidence, including of motorcyclist and motorcycle number, except the statement made in F.I.R. Exh.40. It is clear that such statement [20] made in the F.I.R. cannot be treated as substantial piece of evidence, unless it is corroborated by other independent witnesses or any other cogent material to support the same. Therefore, the evidence of P.W.2 (Awati) read with the evinces of P.W. 3 are not sufficient to link the offence, as charged against all the accused. These evidences are not sufficient to involve all the accused in the crime in question beyond reasonable doubt. 15. Even if we take the testimony of P.W. 2, as substantial and material evidence to support the prosecution case, we find that, as per the prosecution case itself, the person, who had killed the deceased was the deceased Salian. P.W 2 and 3 had identified the dead bodies of the said deceased Salian @ Dany with other. Therefore, Salian @ Danny had murdered the deceased and no one else. Therefore, it is difficult to sustain the conviction, as well as, impugned order, as passed by the learned Sessions Judge against all the accused in view of this evidence itself. 16. THE CONSPIRACY:- THE CONSPIRACY:- THE CONSPIRACY:- What remains is the case of the [21] conspiracy, as contemplated under Section 120A r/w with Section 120 B of I.P.C. There is nothing on the record to establish conspiracy or pre planning by all the accused to facilitate the escape of Phiroj Kokani from the Police custody on that day, in question. As per P.W. 2 deceased Salian and Phiroz Kokani ran away and he chased them, this itself cannot be sufficient to connect the involvement of accused Nos. 2 and or 4. There is no independent or any material circumstance to demonstrate that all the accused had conspired and committed the offence in question. 17. The more important thing in this case is the alleged prosecutions case of conspiracy revolving around Section 120A and 120B of Indian Penal Code. There is no doubt that it is difficult to collect the evidence and to prove the agreement between conspirators. Based on the facts and circumstances of the case, the Court has to draw inference to prove that the particular act or omission falls within the ambit of conspiracy. The material as well as, circumstances should be such as to satisfing the Court that the persons have conspired to commit the offence. Thus it is essential that the main [22] accused should be connected or involved in such agreements of minds along with other co-conspirators, eitehr directly or indirectly. Therefore, the burden is always heavy on the prosecution to bring on the record, the material to connect, a conspirator with the crime or offence in question. Section 10 of the Indian Evidence Act, 1872 will also come into play in such matters. Prima facie therefore, the mode