IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO. 655 OF 2002 DIST.: PUNE 1) Mr. Diddisingh Ajitsingh Kalyani ) Age 36 years, Occupation – Business. ) 2) Mr. Chandsingh Ajitsingh Kalyani ) Age 38 years, Occupation – Business. ) 3) Mr. Satsingh @ Pillisingh Ajitsingh Kalyani ) Age 34 years, Occupation – Business. ) 4) Mr. Takkusingh Ajitsingh Kalyani ) Age 29 years, Occupation – Business. ) 5) Mr. Khannasingh Ajitsingh Kalyani ) Age 25 years, Occupation – Business. ) 6) Mr. Lakhansingh Ajitsingh Kalyani ) Age 23 years, Occupation – Business. ) 7) Mr. Jalindersingh Ajitsingh Kalyani ) Age 27 years, Occupation – Business. ) ) All residing at : Shikalkari Vasti, S. No. 110, ) Ramtekdi, Hadapsar, Pune. ) (At present detained in Yerawada Central ) Prison, Pune – 411 006. )..Appellants (Ori.Accused Nos.1 to 7) Versus The State of Maharashtra ) (Through Officer-in-charge, Wanawadi ) Police Station, Pune.) ) .. Respondent 1 ALONG WITH CRIMINAL APPEAL NO. 892 OF 2002 The State of Maharashtra ) ..Appellant Versus 1) Mr. Diddisingh Ajitsingh Kalyani ) Age 36 years, Occupation – Nil. ) 2) Mr. Chandsingh Ajitsingh Kalyani ) Age 38 years, Occupation – Nil. ) 3) Mr. Satsingh @ Pillisingh Ajitsingh Kalyani ) Age 34 years, Occupation – Nil. ) 4) Mr. Takkusingh Ajitsingh Kalyani ) Age 29 years, Occupation – Nil. ) 5) Mr. Khannasingh Ajitsingh Kalyani ) Age 25 years, Occupation – Nil. ) 6) Mr. Lakhansingh Ajitsingh Kalyani ) Age 23 years, Occupation – Nil. ) 7) Mr. Jalindersingh Ajitsingh Kalyani ) Age 27 years, Occupation – Nil. ) ) All residing at : Shikalkari Vasti, S. No. 110, ) Ramtekdi, Hadapsar, Pune. ).. Respondents (Ori.Accused Nos.1 to 7) Mr. Majeed Memon with Mr. Parvez Memon and Mr. R.S. Sharma for the Appellants in Criminal Appeal No. 655 of 2002 and for the Respondents in Criminal Appeal No. 892 of 2002 Mrs. V.R. Bhosale, Additional Public Prosecutor, for the State. CORAM : BILAL NAZKI and S. A. BOBDE, JJ. 2 DATE OF RESERVING THE JUDGMENT : 22-1-2008 DATE OF PRONOUNCING : 5-5- 2008 JUDGMENT : (Per Bilal Nazki, J.) : Special Case No.1 of 2000 was tried by the Sessions Judge, Pune, who was also a Special Judge for the Maharashtra Control of Organized Crimes Act. Seven accused persons faced trial for the offences under Sections 143, 147, 148, 302, 324 read with Sections 149 and 34 of the Indian Penal Code. They also faced trial for the offences punishable under Section 4 of the Arms Act and Sections 3 (1)(i), 3(5) and 3(2) of the Maharashtra Control of Organised Crimes Act. By his judgment and order dated 30th April, 2002 of the learned Sessions Judge, all of them were convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/- each. They were also convicted for the offences punishable under Sections 143, 147 and 148 of the Indian Penal Code and sentenced to suffer R.I. for one year and fine 3 of Rs.200/- each. They were also convicted for the offence punishable under Section 4 read with Section 25 of the Indian Arms Act and sentenced to suffer R.I. for one year and to pay fine of Rs.200/- each. Accused No.1 was also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to R. I. for six months and to pay fine of Rs.200/-. Accused Nos.2 to 7 were acquitted of the offence under Sections 324 read with Section 149 of the Indian Penal Code. All the accused were acquitted of the offence under Sections 3(1)(i), 3(2) and 3(5) of the Maharashtra Control of Organised Crimes Act, 1999. The substantive sentence were to run concurrently. 2. The accused persons have filed the appeal being Appeal No. 655 of 2002 against conviction and sentence. While the State has filed appeal being Appeal No. 892 of 2002 against acquittal of the accused persons under the provisions of the Maharashtra Control of Organised Crime Act, 1999. Both the appeals are from the same judgment and 4 order. Therefore, both the appeals are heard together and they are being disposed of together. 3. At the outset, it is pointed out that all the accused persons are brothers and two of them have already died during the pendency of these appeals and they are appellant Nos.1 and 5 in Appeal No. 655 of 2002. As such, both the appeals, in so far as appellant Nos.1 and 5 are concerned, stand abated. The occurrence on the basis of which the accused went to trial has resulted in two deaths and also injury to one of the witnesses i.e P.W.2. The facts relating to this case, on the basis of which the prosecution filed the charge sheet, can be summarised thus: 4. That the accused persons were real brothers. They lived in a locality known as Shikalkari Vasti in Ramtekdi area at Hadapsar, Pune. Deceased Dashrath was the maternal uncle of P.W.2 Yogesh Pillaye. Yogesh Pillaye also resided in the same locality. The occurrence took place on 19th July, 1999, which was reported to police by the Complainant, the complaint being Exh.80. According to the complainant, being 5 P.W.2, the complaint was filed with the Wanawadi Police Station. The deceased Dashrath was staying at Ghorpadigaon. He was visiting Ramtekdi of and on as his sisters were living in Ramtekdi area. Father of P.W.2 had died early when P.W.2 and his brothers were minors at that time, so their maternal uncle Dashrath used to look after them and, therefore, he was off and on visiting them at their house at Ramtekdi. In the year 1993 the accused Diddisingh and his brothers had assaulted deceased Dashrath and the matter had been reported to the police and Diddisingh and his brothers were arrested. They were prosecuted and the case was pending against them before the J.M.F.C., Cantonment Court at Pune. When the case was fixed for hearing on 18th June, 1999. In the morning of that day the accused Diddisingh, Chandsingh and Jalindersingh approached Dashrath at the house of his sister Anjali and asked Dashrath to withdraw the case and threatened them that in case he failed to withdraw the case, they would kill him. The incident was reported by Dashrath to Wanawadi Police. As a result Chandsingh was arrested and was 6 prosecuted. Because of this accused Nos.1 to 7 got irritated and they started quarreling with Dashrath, his sister and nephews. The prosecution case was that generally the behaviour of these seven brothers in the area was reprehensible and they had created an image of terror so that no one dare to lodge complaint against them. 5. On 19th July, 1999 in the morning at 11.00 a.m. Dashrath had been to the house of Yogesh along with Sairam. Yogesh asked his uncle Dashrath to accompany him to Pune as he had to go to obtain passport and visa. Dashrath agreed and they made certain arrangement, by which Dashrath and Sairam left the house of Yogesh and went to Pune town. Yogesh left his house and came to Ramtekdi Bus Stop and was waiting for his uncle who had gone to Pune town. At about 12.45 p.m. Dashrath and Sairam returned back on their Kinetic Honda motor cycle. They turned their motor cycle towards Ramtekdi because they had not seen Yogesh waiting for them at bus stand. Yogesh saw them so he called his uncle. When Sairam and Dashrath turned by S. R. P. Road, which leads towards 7 locality of Yogesh and when they reached up to Pappu Garage, they were restrained by accused Nos.1 to 7. Accused Nos.1 to 7 had swords in their hands. They restrained the motor cycle of Dashrath and accused asked themselves to start attack and kill them. Chandsingh hit a sword on the head of Dashrath. Because of the first blow, the Dashrath who was on the motor cycle of Sairam fell down Sairam also fell down. All the accused then started giving blows of swords on Dashrath. At the time of this attack, they were saying that they should not leave them alive but should kill them. They inflicted injuries by swords to Dashrath on head, face, neck and legs. In this incident accused Diddisingh and Takkusingh also gave blows of swords to Sairam on his head. Then Sairam just started running but he could not run. He was unable to run as he had sustained injuries and he fell down at some distance from Dashrath. When this assault was going on, P.W.2 Yogesh rushed towards the spot and requested the accused persons not to kill his uncle. When Yogesh made an attempt to rush towards his uncle, accused Diddisingh gave blow of sword to Yogesh 8 which blow hit his palm and Yogesh also sustained injuries. Diddisingh asked Yogesh to run away otherwise he would also be killed. Because of this threat, Yogesh ran away and stood at some distance. After some time, accused conversed with each other and said that Dashrath was dead and thereafter all of them left the spot and ran away with the weapons which they had. After they left the spot, Yogesh rushed towards the spot where his uncle was lying. When he reached there, his maternal aunt P.W.4 Anjali also arrived. Both the Dashrath and Sairam were unconscious. Vinesh, the brother of Yogesh also came to the spot. Vinesh, Yogesh and Anjali called two auto rickshaws and both the injured Dashrath and Sairam were carried to Sassoon Hospital. On reaching Hospital, the Medical Officer declared Dashrath dead. Sairam was alive and was admitted in Ward No.9. The relatives of Sairam shifted him to Budhrani Hospital and he was admitted there. He was treated there by a doctor. Throughout Sairam remained unconscious. He was kept in I.C.U. The doctors had noticed fracture of right parietal bone, subdural haematoma in temporal parietal area. The doctor 9 ruled out surgery and eventually Sairam also died next morning at 5.15 a.m. at the Bhudhrani Hospital. 6. On the basis of this prosecution story the accused persons were prosecuted. Charges were framed as mentioned above. The accused pleaded not guilty and claimed to be tried. The prosecution examined 24 witnesses. Out of these witnesses, P.W.2, 4, 5 and 18 were the main eye witnesses. The prosecution also tried to prove recovery at the disclosure of the accused persons but recovery was disbelieved by the Sessions Judge. 7. P.W.1 is the panch witness, who stated that on 19th July, 1999 in the evening at about 5.30 p.m. he was leading towards his house from Hadapsar by Solapur Highway. After he crossed Ramtekdi bridge, he noticed crowd and also the police party. Then the police called him and inquired whether he could offer his assistance to them. He agreed to act as a panch witness. The police took him near Pappu Garage, where one red colour cap was lying near one electric poll. 10 One black colour Kinetic vehicle was lying on S.R.P.Road at a distance of 5 ft. from the garage. He saw the condition of the vehicle. The vehicle was in a damaged condition and the pieces of broken glass of vehicle were lying on the ground. There were blood stains on the vehicle. At the time of recording panchanama, it was raining. Cap was lying on the ground and was stained with blood. The blood stains were also found on the ground. The blood was found mixed with the mud. One tooth was also found in the blood mixed earth on the spot. The police collected blood mixed with earth in one packet. The tooth found on the spot was seized. The cap as well as Kinetic vehicle were also seized by the police. The vehicle bore No. 7725. 8. P.W.2, Yogesh Shalvaraj Pillaye, is a main prosecution witness, who is an eye witness. He stated that he, his mother, his sister, his brother and maternal aunt reside together at Ramtekdi. Anjali is his maternal aunt and she resided in the house which is situated in front of his house. His father died when he was a minor. Deceased Dashrath 11 was his maternal uncle, who used to look after them after the death of his father. The deceased was residing at Ghorpadi in Lalkhan Wada, Room No.58. He knew all the accused from his childhood. They were residents of Sikalkar Vasti at Ramtekdi. In 1993, the accused Diddisingh and his brothers had assaulted his maternal uncle Dashrath. Dashrath was admitted in the hospital because of the injuries sustained by him. Criminal case relating to that incident was pending in a Cantonment Court. In the said case the accused were arrested and were subsequently released on bail. On 18th June, 1999, Dashrath had been to his house. At that time the accused also came to his house and asked Dashrath to withdraw the case. They also gave threat to kill his uncle if he did not withdraw the case. On the same day, his uncle filed a complaint in Bhairoba Nala Police Chowky and on that complaint Chandsingh was arrested. Because of arrest of Chandsingh, accused were annoyed and always visiting their locality and uttering abuses and giving threats to them. But the witness stated that they neglected their threats and did not lodge any other report. The accused were creating terror 12 in the locality. On 19th July, 1999, his maternal uncle Dashrath came to his house at about 11.00 a.m. Along with his friend Sairam on Kinetic Honda. He asked his uncle whether he would accompany him to Fatima Nagar to assist him in getting visa. His uncle told him that he should wait at Ramtekdi Bus Stop as he had some work of his friend and after finishing that he would meet the witness at Ramtekdi Bus Stand. Then he left his house and went to Ramtekdi Bus Stop. He reached there at 11.30 a.m. Dashrath had already gone with his friend to do some work of his friend. Because of rain he waited under a shed of a shop behind Ramtekdi stop. At 12.15 noon, his uncle Dashrath along with his friend came there and he saw them. He gave call from the shed where he was standing. Dashrath came there on his Kinetic Honda with his friend from Pune side. Though he gave call, Dashrath turned his Kinetic Honda by S.R.P. Road as he must not have heard his call. He followed his maternal uncle towards S.R.P. Road from Ramtekdi. He noted that his uncle Dashrath, who was on Kinetic Honda, was being restrained near Pappu Garage by accused Nos.1 to 7 who were having 13 swords in their hands. Witness saw the occurrence from the distance of 20 ft. He saw the accused Chandsingh gave blow of sword on the head of his uncle Dashrath, who was still sitting on his kinetic Honda. His uncle Dashrath and his friend Sairam both fell down from kinetic Honda. After Dashrath fell down, accused Diddisingh hit sword on his face. Accused Takkusingh hit sword on the neck of Dashrath. Accused Jalindersingh and accused Khannasingh gave blows by swords to Dashrath on his chest and stomach. Accused Pillisingh and Lakhansingh gave blows of sword on the legs of Dashrath. The witness also saw the accused Diddisingh and Takkusingh hit swords on the head of Sairam. That time he rushed towards his uncle to save them. That time he was saying the accused not to hit his uncle and was shouting not to beat his uncle. Because of the assault Sairam also fell down at some distance from his uncle. That time Dashrath was lying on Kaccha road in a pool of blood. Accused Diddisingh told him to go away and also threatened that he would also be killed. That time Diddisingh gave blow on his head but to save he raised his hand and the sword hit on his 14 left hand finger. He turned towards Ramtekdi bus stop to run away. While running he turned towards backside to see whether the accused were following him. The accused were not found following him but he saw them running away towards a lane from Toddy shop having swords in their hands. That time he also saw his maternal aunt Anjali coming towards Dashrath from other side. He rushed towards Dashrath. That time his brother Vinesh also came to the spot from southern side on S. R. P. Road. Anjali put her saree on the face of Dashrath and covered his face. Dashrath was alive by then. Vinesh and his aunt Anjali took Dashrath to the hospital by one rickshaw. He called another rickshaw and reached Sairam to Sassoon Hospital. At that time Sairam was unconscious. Injured Sairam was admitted in Ward No.9 of Sassoon Hospital. There, he came to know that Dashrath was declared dead by the doctor. So he rushed towards him, leaving Sairam in Ward No.9. 9. P.W.2 saw the dead body of Dashrath in the mortuary of the hospital. One lady police officer was present there. 15 Police recorded inquest panchanama. At the time of inquest panchanama, he gave identification of dead body of Dashrath. In the hospital itself, they informed the police that they wanted to lodge complaint about the incident, but he was told that he should go to Wanawadi Police Station. Then at about 3.30 to 4.00 p.m. His complaint was recorded in Wanawadi Police Station. He narrated incident in detail to the PSI, who recorded the complaint. The complaint read over to him was the same and it bore his signature. This F.I.R. was marked as Exh.80, though an objection was taken by the defence to mark the same as exhibit that it should not be treated as F.I.R. since the investigation was already started. Thereafter, along with the police he went to the place of incident. He had shown the place of offence to the police. The police then recorded panchanama of scene of offence. They then returned back to Wanawadi Police Station. In the police station he produced his blood stained shirt and banian before the police. They were seized by the police and the panchanama was also prepared. He was also referred to the hospital for medical examination as there was injury on his 16 hand. He was examined in the Sassoon Hospital by the doctor. He was given treatment and sutured the wound on his finger. Articles 6 and 7, the shirt and banian, were identified by him as his own clothes worn by him at the time of incident. These articles were stained with blood of Sairam when he had lifted him and took him into the rickshaw to carry him to the hospital. Article swords before the court were the swords used by the accused in the incident. 10. On cross-examination, he stated that Survey No.110 Ramtekdi was a big survey number and the population of the slum holders staying there might be 10,000. His house was at a distance of about half kms. from Pune Solapur Road towards southern side. S.R.P. Road leads towards south from Solapur Road. From S. R. P. Road one road, Andh Shala Road, was parallel to Solapur Road. His house was adjacent to one another road which starts from Andh Shala Road and runs towards right side. He stated that to the left of Andh Shala Road there was a locality known as Sikalkar Vasti where accused resided. The population of Sikalkar community was about 1,000. All Sikalkaris follow Sikh religion 17 and they grow their hair, beard but do not always carry sword with them. Bhangar shop of Satish Londhe was at the corner of Andh Shala and the road which leads towards his house. Satish Londhe was a Corporator of Pune corporation from that ward. Wanawadi Police Station was at a distance of about 1 and half kms. from Pappu Garage. The bus stop where the inhabitants were getting down from the bus was to the north of Solapur Road and the bus stop where he was waiting that day was opposite to the said bus stop. At Ramtekdi bus stop there was shed where he was waiting that day. There was one Saibaba Temple at the junction of S.R.P. Road and Andh Shala Road. There was rickshaw stand in front of Saibaba Temple on Andh Shala Road. Pappu Garage was not visible to a person standing from the rickshaw stand near Saibaba Temple. About 1 to 1 and ½ hour was spent for recording his complaint. P.I. Irani got recorded his complaint. When the recording of inquest panchanama was going on in Sassoon Hospital, he left the hospital and went to Wanawadi Police Station to report the matter to the police. He is Hindu by religion. On the next day 18 of the incident at about 11.00 a.m. He took dead body of his maternal uncle after post mortem from police constable on passing receipt for it. That day he reached Sassoon Hospital carrying injured Sairam from the spot at about 1.00 p.m. When he approached the medical officer having requisition issued by police, the doctor made inquiry with him about the cause of injury. It did not happen that he disclosed to the doctor that he sustained injury at 2.30 p.m. by iron sheet. Then he was put a question whether the doctor had recorded the history as narrated by him and he stated that he had explained the cause of injury on his hand to the doctor who had examined him and he disclosed to the doctor that he sustained injury by a sword. He died that he had said to the doctor that he sustained injury on his hand by iron sheet at 2.30 p.m. In the year 1999, he had plan to go to abroad but not to a particular place. He had obtained passport in 1992. On the day of incident he was to meet an agent at Fatima Nagar in connection with visa. The agent was also acquainted to deceased Sairam. That day's visit was the first visit to the agent in connection with his visa. That day he had 19 no talk with Dashrath or Sairam about the work for which they had gone to Pune City. He had talked with his uncle in the morning at his house on the day of occurrence. When they made plan to meet at Ramtekdi bus stop, there was nobody except he, Dashrath and Sairam. He was waiting for his uncle at the bus stop from 11.30 to 12.00 noon. Sairam had no blood relation with Dashrath but they were friend. He did not know Shekhar. He also did not know Mahesh Salunkhe. He denied that Pappu Garage or the site in front of it was not visible from Ramtekdi bus stop. He had stated at the time of recording his complaint that after Dashrath started by S.R.P. Road he followed him and witnessed the incident from a distance of 20 ft. He could not assign any reason why said fact was not recorded in his complaint, Exh.80, though he had said so to the police. Then there are some other omissions pointed out, like, that he was waiting under a shed because of rain which was not found in police statement. There were about 10 persons at the bus stop at the time of occurrence. He denied the suggestions that there was no plan for him to meet the deceased person at Ramtekdi Bus 20 Stop. He had not witnessed the incident of assault on Dashrath from accused which took place in the year 1993. However, he was present at the time of incident on 18th June, 1999. He denied that deceased was dealing in illicit liquor. He did not know that any case was pending against Dashrath. He also denied that Dashrath was a history sheeter. He denied that both the