1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO.662 OF 1999 CRIMINAL APPEAL NO.662 OF 1999 CRIMINAL APPEAL NO.662 OF 1999 Sachin Ganpat Badambe ] aged about 21 years, ] R/o.Tata Housing Complex, ] Appellant Room 804, Ramtekdi Road, ] Sewri, Mumbai 20. ] At present detained in Yerwada ] Central Prison, Pune. ] versus The State of Maharashtra ] Respondent Mr.Shirish Gupte, Sr.Counsel with Smt.Sharmila Kaushik for the appellant. Dr.F.R.Shaikh, APP, for the State. WITH WITH WITH CRIMINAL APPEAL NO.626 OF 1999 CRIMINAL APPEAL NO.626 OF 1999 CRIMINAL APPEAL NO.626 OF 1999 1] Shri Sanjay Sudhakar Kage ] 2] Satish Rawaji Karangutkar ] Appellants. @ Banty ] Both resident of Sector 17 ] (Original Room No.316, Koper Khairane ] Accused Nos. 2 2 2 Vashi, New Mumbai. ] 2 and 4. (at present detained in Jail)] at Yeravada Central Prison ] Pune. ] versus The State of Maharashtra ] Respondent. Mr.Prakash Naik for the appellants. Dr.F.R.Shaikh, APP, for the State. WITH WITH WITH CRIMINAL APPEAL NO.663 OF 1999 CRIMINAL APPEAL NO.663 OF 1999 CRIMINAL APPEAL NO.663 OF 1999 Yogendra Singh @ Sonu ] S/o.Narsingh Bahadur Singh ] Aged 19 years, residing at Bori ] Appellant. Chawl, Chal No.55/56, Room ] (Original No.16, Ram Takede Road, Sewree ] Accused No.1. Mumbai 400 015. ] versus The State of Maharashtra ] Respondent. Mr.Ashok Mundergi, Sr.Counsel, with Mr.Rajendra Sorankar for the appellant. Dr.F.R.Shaikh, APP, for the State. 3 3 3 CORAM : D.G.DESHPANDE & CORAM : D.G.DESHPANDE & CORAM : D.G.DESHPANDE & V.M.KANADE, JJ. V.M.KANADE, JJ. V.M.KANADE, JJ. DATED : 6th December 2005. DATED : 6th December 2005. DATED : 6th December 2005. JUDGEMENT [PER D.G.DESHPANDE, J.] :- JUDGEMENT [PER D.G.DESHPANDE, J.] :- JUDGEMENT [PER D.G.DESHPANDE, J.] :- 1. All the three appeals have been filed by originally convicted accused. Appeal No.663 of 1999 is filed original accused No.1 - Yogendra Singh @ Sonu S/o.Narsingh Bahadur Singh. Appeal No.626 of 1999 is filed by original accused No. 2 - Sanjay Sudhakar Kage and original accused No.4 - Satish Rawaji Karangutkar. And Appeal No.662 of 1999 is filed by original accused No.3 Sachin Ganpat Badambe. 2. Accused No.3 was represented by learned counsel Mr.Shirish Gupte, Accused Nos. 2 and 4 were represented by advocate Mr.Prakash Naik. and, accused No.1 was represented by learned counsel Mr.Ashok Mundergi. 3. All the accused/appellants were convicted under Section 302 r/w. 34 of the Indian Penal 4 4 4 Code for murdering Sudhesh Manohar Khamkar. Deceased Khamkar was running a company as "Rexo Company" and manufacturing and fabrication of bearing for the trolleys in Industrial Gala No.74. Accused No.4 Satish was employed by Khamkar for some time and was discontinued by deceased Sudhesh Khamkar. His wages were settled. But accused No.4 was not satisfied with the settlement and he used to make phone calls to deceased Khamkar with threats and dire consequences. One of such calls was allegedly made on 20.2.1997 at around 12.00 noon. 4. The incident occurred on 22.2.1997 in the industrial gala of deceased Khamkar at about 4.00 p.m.. All these accused came to the industrial gala, enquired about deceased Khamkar. He was in adjoining industrial unit. He was called at his unit and then all these accused wiped out their weapons. Accused NO.4 Satish was having revolver. He fired two shots and others attacked deceased Khamkar with chopper, Khanjir (dagger) or knife causing injuries on his head, abdomen, fore-arms, chest, neck etc. and then they fled away. This incident was watched and seen by four employees of Khamkar. Body of Khamkar was taken 5 5 5 to the hospital where he succumbed to the injuries. In the mean time PSI Narayan Balaji Sable (PW 30), who was on duty as S.H.O of N.M.Joshi Marg Police Station, received a telephonic call at 16.15 hrs. about the incident. He informed it to the duty P.I. Patil (PW 32) and the police party proceeded to the spot. Statement of P.W.1 Ashok Nivrutti Ghorpade was recorded as Exhibit 12. It was treated as F.I.R. Further investigation was carried out. Panchanama of scene of offence was prepared. Dagger lying on the spot was sealed. Inquest report was prepared followed by post mortem report. It transpired during enquiry that the appellants escaped in a Taxi MMQ-132. Driver was apprehended. Blood scrapping, currency notes and empty cartridges were taken charge of. Enquiry from other employees, who were present at the spot, was made. The statements of the witnesses were recorded. From the post mortem one lead piece of bullet was extracted. Dr.Shinde (PW 18) completed the post mortem. Prepared his report. Blood stained clothes of the deceased were sent to the Chemical Analyser. 5. On 4.3.1997 Accused No.2 Sanjay Kage was 6 6 6 arrested by Mahatma Phule Police Station, Kalyan. Enquiry from him was made. Names of other accused were disclosed. He was transferred in this case. Thereafter on 17.3.1997 accused No.2 made voluntary statement leading to disclosure of his blood stains clothes. There was injury on the person of accused No.2. The doctors, who had treated the accused on that day i.e. on the date of incident 22.2.1997, were also questioned and their statements were recorded. One of such doctors was Dr.Pol (PW 25). 6. On 7.3.1997 Accused No.1 - Yogendra was arrested. He also made voluntary statement under Section 27 of the Evidence Act and the clothes, which he had put on at the time of assault, were recovered under panchanama. This accused had an injury to his right hand. Statement of Dr.Shah (PW 9), who had treated him, was also recorded. 7. On 26.3.1997 accused No.3 Sachin was brought his father. He was arrested. At his instance, a chopper and a full pant were recovered under panchanama. All the articles so far recovered and seized from the spot or from the accused were sent to the C.A. Accused Nos. 7 7 7 1, 2 and 3 were put in identification parade which was carried out by SEM Medhekar (PW 19). By that time, accused No.4 could not be arrested, therefore, he was shown as wanted accused and, a charge sheet came to be filed against accused Nos. 1, 2 and 3. Thereafter accused No.4 - Satish was arrested by Bazarpeth Police Station on 14.4.1998. He was transferred in this case. He was also put in identification parade which was conducted on 12.6.1998. When the accused was arrested by Bazarpeth Police Station, they had recovered empty cartridges and a pistol from accused No.4. They were sent to C.A. Separate charge sheet against accused No.4 was filed. Thereafter both the sessions cases were clubbed and tried together. 8. The prosecution has examined in all 30 witnesses in this case. The defence of the accused was of total denial and that of falsely implicating them at the instance of the relatives of deceased Khamkar. Accused No.4, in particular, raised this defence and according to him, because of the dispute between him and deceased Khamkar, he has been falsely implicated. The trial court, after scrutiny of the entire 8 8 8 evidence, which included evidence of four eye witnesses i.e. P.W.1 to 4; evidence of recovery, report of the C.A. and post mortem report and other circumstances, came to the conclusion that the accused were guilty of offences charged, therefore, they were convicted as stated above and, hence these three appeals. 9. No serious dispute or dispute of any kind was raised by any of the defence counsel that deceased Khamkar died a homicidal death. As per the report of the doctor, who has conducted the post mortem, i.e. Dr.Ashok Shinde, he noticed in all 34 injuries, out of which, Injury Nos. 1 to 4 are incised wounds; Injury No.5 is incised stab wound; Injury No.6 is a fire arm wound of entry; Injury No.7 is a fire arm wound of exit; Injury No.8 is a fire arm wound of entry; Injury No.9 is a fire arm wound of exit, both the injuries are on chest. Then Injury Nos.10, 11, 12, 13, 14, 20, 21, 23, 24, 26, 29 and 30 are the incised wounds. Injury Nos.15, 16, 17, and 18 are incised stab wounds. Injury Nos.19, 22, 28 are linear abrasion. Injury No.25 is cutting of bone. Injury No.27 is abrasion. Injury Nos. 31 and 33 are fire arm wounds of entry. Injury 9 9 9 No.33 is fire arm wound of exit. And lastly Injury No.34 is swelling. . It will be clear that all these injuries were fatal and caused on vital parts of the body including chest, abdomen and as a result Khamkar died. Also there were injuries on head. The cause of death, according to the doctor, was haemorrhage and shock due to multiple incised stab wound and incised wounds with fire arm wounds (unnatural). Further according to the doctor, Injury Nos. 5, 10, 15, 16, 17, 18 and 33 individually were sufficient to cause death in ordinary course of nature and, all these injuries from 1 to 34 cumulatively cause death. These injuries were caused by sharp edge heavy weapons like chopper, sword etc. The doctor has noticed four fire arm entry wounds on the death body. Regarding firm arm injuries, the doctor opined in his cross examination that they were fired from a distance of 3 ft. This report itself clearly and undoubtedly proves that Sudhesh Khamkar died a homicidal death. There was no challenge at all to this aspect of the matter. 10. General challenge to the prosecution case 10 10 10 and the evidence by all the accused was mostly and mainly regarding identification parades. According to them, the norms laid down for identification parade were not adhere to. The police officer in the first identification parade was present at the time and place. Panchas who were present at the time of parade were not examined. The SEM, who conducted 1st three parades has, as per his deposition, admitted that he had written the notes and then prepared the memorandum but the notes were not produced and, therefore, the memorandum cannot be said to have been proved, particularly when the panchas were not examined. So far as accused No.3 is concerned, he was wearing spects and in the identification parade since he was the only person wearing spect, he could be easily identified. Then there is actual difference between height of the accused as noticed by the witnesses in the court and actual height, while selecting dummies, the persons resemblance to the appearance of the suspects were not kept and, therefore for all these reasons the evidence of identification parade led by the prosecution cannot be believed at all and, if that evidence goes away, then in any case the accused were 11 11 11 entitled for acquittal. 11. Regarding discovery of incriminating articles from the accused, it was general contention that those discoveries were not proved. The statements of the accused leading to the discoveries were not proved. The incriminating articles were recovered from the open spot or place and, there is no connecting link establishing participation of the accused in the offence on basis of this recovery. 12. Regarding the evidence of four eye witnesses i.e. P.W. 1 to 4, it was contended that they are the employees of deceased Khamkar and they are supporting the prosecution with a view to vengeance upon the death of their employer. It was also contended that even if four persons were there on the spot and the police came to know from them about the assailants and even though all the four persons were detained in the police station from the evening of 22.2.1997 till next day morning, their statements were not recorded. Their statements were recorded on the next day and this, therefore, is a suspicious circumstance creating 12 12 12 doubt about veracity of those witnesses. Apart from the general submissions, the counsel for each of the accused made separate submissions in defence of his accused. Those will be considered at appropriate place. 13. On the other hand learned APP for the State contended that this was a full proof case with no doubt whatsoever about the role of the accused in the murder. He contended that the incident had taken place in a broad day light at 4.00 p.m. in the factory or gala of deceased Khamkar where admittedly other employees of deceased Khamkar were present. Out of them four had witnessed the incident and merely because they were the employees of deceased Khamkar, they had no enmity with any of the accused and, therefore, they had no reason to falsely implicate any of the accused. The learned APP also contended that all the accused used their deadly weapons mercilessly and repeatedly causing as many as 34 injuries. The incident was lasted for quite a considerable time and, therefore, this gave sufficient opportunity to all the eye witnesses to see and observe all the accused and then to identify them in the identification 13 13 13 parades subsequently held. 14. The learned APP contended that there were no serious infirmities in the identification parades. They were conducted independently by SEM and nothing damaging is brought out in his evidence. He also contended that the so called presence of the police officer at the time of first identification parade cannot be a circumstance to disregard the evidence. Because no particulars in this regard are brought on record. Regarding non-examination of panchas, who were present at the identification parade, the learned APP contended that when no doubt is created by the cross examination of SEM in the parades held by him, then it was not necessary for the prosecution to examine the panchas. Further non-production of notes prepared by SEM is not at all fatal, because the SEM was not accepting nor maintaining and preserving the notes and when he has stated that he immediately prepared the memorandum then there are no reasons to disbelieve the SEM. Therefore, according to the learned APP, the fact that the four eye witnesses had sufficient opportunity to identify the accused and that the accused have been 14 14 14 identified in the parades clinchingly proves the guilt of the accused. 15. Regarding recovery of incriminating articles, the learned APP contended that the seizure and recovery of those articles from the spot and at the instance of the respective accused was amply proved. The articles were sent to the Chemical Analyser. They were found to contain blood, though the blood group was not conclusive. Apart from this, three of the accused had minor injuries to their hands. They got themselves treated on the very same day of the incident from the private doctors and the prosecution has examined those doctors and since no explanation was offered by the accused about their injuries, the presence of injuries on the person of the accused directly supports the prosecution case. Because the weapons used by the accused were deadly and sharp weapons and, if as many as 34 injuries were caused by means of those articles, the accused were bound to suffer minor injuries to their hands. 16. In this regard, the advocates for the accused contended that if it was for the 15 15 15 prosecution to explain the injuries on the person of the accused and if no explanation is coming from the prosecution, the accused were not bound to give any explanation about the injuries. 17. The learned APP also contended that so far as accused No.4 is concerned, he was known to all the employees because he had worked with them. He could be arrested only after a long period of one year. A revolver and cartridges were recovered from him and the forensic expert has given clear opinion that it was the same revolver which was used by him against the deceased and, therefore, according to the prosecution, all the ingredients of offences were proved beyond reasonable doubt and this was not a case to interfere with the judgment of conviction for any reason whatsoever. 18. Now coming to the submissions of learned counsel Mr.Mundergi, appearing for accused No.1, his main contention was that if the witnesses P.W.1 to 4 were present at the scene of offence, there was no reason for the police to cause delay in recording their statements. It is necessary, in order to appreciate their arguments, to 16 16 16 consider the evidence of P.W.1 to 4 in this regard. . P.W.1 - Nivruti Ghorpade, in para 17 of his testimony and cross examination, has stated that from the time of incident, till arrival of the police, he did not leave the gala. Police made efforts for searching empties or lids pieces, but they were not able to trace it. After that, PI Patil took all the employees to the police station and they were at police station throughout the night and, persistently, during this period, the police officers were enquiring with all of them about the incident and as they were not able to tell the facts, they were detained throughout the night. . P.W.2 - Bahadur Jaiswal, in para 5 of his examination in chief, has stated that the police took him to the police station and made enquiries with him and recorded his statement. In para 13 of his cross examination, he has stated that the police took him to the police station to make enquiries and recorded his statement. He has further stated that after enquiry, all the five persons including, this witness P.W.2, were 17 17 17 relieved by the police on next day morning and during the night, the police officers were enquiring with them as to how the incident had happened and about other details. . P.W.3 - Vilas Vishnu Kamble, in para 3 of his examination in chief has stated that the police has recorded his statement at police station on next day. In the cross examination, in para 10, he has stated that after the incident, all the labours including P.W.1 to 4, were together in the company. All of them were taken in the night to the police station and he remained at the police station till the next day morning. The police officers were making enquiries with them about the incident and, the enquiry was to know or to reach near a clue. Then in para 14 he has stated that The inquiry in the night of 22.2.97 was because the police were not able to get proper clue of the assailants from them. The inquiries were made by Sr.Police Officers for two times. He also stated that the police did not man-handled or threatened or coerced them in the night. . Then P.W. 4 - Tanaji Kisan Wani, in para 18 18 18 3, has stated that when the police arrived at the spot, these 4-5 persons were taken to the police station where the statement of this witness P.W.4 was recorded. In the cross examination, in para 11, he has stated that they were at police station till next day morning and the police were persistently making inquiries with them and on the 2nd day morning i.e. on 23.2.97 his statement was recorded. 19. From these admissions of all the four witnesses i.e. P.W.1 to 4, learned counsel Mr.Mundergi and all the defence counsel, contended that if the FIR was recorded, as alleged by the prosecution, on 22.2.1997 itself, at 17.10 p.m. and if P.W.1 Ashok, who had given the FIR, has given all the particulars and when all the four witnesses were in the custody of the police right from the evening of 22.2.1997, there was no reason for recording their statements on the next day morning and if without any reason recording of statements was delayed, then this has created doubt about the veracity of these witnesses and their presence on the spot as eye witnesses. We do not find any merit in this submission. It is true that the FIR, as lodged 19 19 19 by P.W.1, was recorded at 5.00 p.m. on the same day of incident. But FIR is not the last word of investigation. It is beginning of the investigation and, if other three witnesses were claiming to be the eye witnesses or were the eye witnesses, then there was no wrong committed by the police in getting them in police station through the night and then recording their statements on the next day morning. It has to be noted here that in the FIR lodged by the P.W.1 he has disclosed the name of only person and he has given description of other assailants. Rightly, therefore, in order to fix identity of those assailants, the police wanted to make further inquiry from remaining three witnesses. Then after recording the statements and drawing of panchanama, making inquiries from others in that industrial unit was also bound to follow because many persons assembled there. It is almost likely that police were trying to verify whether any of the other persons in that industrial unit was knowing the accused by name or whether any of them could give particulars necessary for identification or necessary for fixing identity and, therefore, if in this background the statements of these four witnesses were recorded 20 20 20 on the next day morning, no wrong was committed nor it can be said that there was delay in recording the statements. Therefore, this circumstance is not at all sufficient to create any kind of doubt about the presence of these witnesses and, the accused cannot get any advantage from this fact. The witnesses have stated that when they were in the police station, there were no threats or coercion upon them. 20. The next challenge to the evidence of these witnesses was on the ground that they were the employees of the deceased and, therefore, they were giving evidence at the instance of relatives of their employer. No where in the cross examination of all these four witnesses anything is brought on record that these four witnesses had any grudge against either accused No.4 Satish or other accused, nor any enmity was brought on record and, therefore, merely because these four witnesses were the employees of deceased Khamkar, it does not create any doubt about their testimonies. To the contrary, they are most natural witnesses being present in the factory at the relevant time. Their statements before the court are consistent to the case of 21 21 21 the prosecution. 21. The next attack on the evidence of these four witnesses was about identification of the accused by them in the identification parades. We consider this aspect regarding each of the accused separately. So far as accused No.4 is concerned, he was a person behind the attack. Because it was at his instance the deceased was attacked and done to death. All the witnesses have stated that they were known to Satish by name and face and, therefore, identification of accused Satish by all the witnesses in the parade is most natural. 22. So far as identification of all the accused is concerned, as per the evidence of P.W.1 - Ahsok Nivruti Ghorpade, in the 1st identification parade he identified accused No.1 Yogendrasingh. This parade was held after 20 days of incident. Then 8 days thereafter accused No.2 Sanjay Kage was identified. 15 days thereafter accused No.3 Sachin Badambe was identified. As per the evidence of this witness P.W.1 no identification parade was held for accused No.4. 22 22 22 . As per the evidence of P.W.2, he identified accused No.1 in the first parade and there were three parades only. . According to P.W.3 there was identification parade for accused No.4 and he identified him and also in the court. There were four parades. . As per the evidence of accused No.4, in the first identification parade he identified accused No.1. Then in the 2nd identification parade