1 Appeal Nos.422/04, 15/04 & 207/04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO.422 OF 2004
Manjuviranna Kantayya Rai ]
Age 22 years, residing at Ajivali, ]
Tal.Panvel, District Thane ] ... Appellant
At present in Kolhapur Central Jail, Kolhapur] (Org.Accused No.2)
versus
The State of Maharashtra ] ... Respondent.
ig ALONG WITH
APPEAL NO.15 OF 2004
Sunil Motiram Katke, ]
Age 33 years, Occ : residing at Navjeevan, ]
Society, A/17, Room No.1 and 2, ] ... Appellant
Sector 15, Airoli, Navi Mumbai ] (org.Accused No.4.)
versus
The State of Maharashtra ] ... Respondent.
ALONG WITH
APPEAL NO.207 OF 2004
The State of Maharashtra ] ... Appellant.
versus
1. Paresh Bhanjibhai Nanda @ Bhanushali ]
Age about 43 yrs. Occ : Business ]
R/at Ghatkopar, Mumbai ]
]
2. Vinod @ Ajay Narsingh Sahu ]
Age about 22 yrs. , R/o Ajivali ] ... Respondents
Tal. Panvel, Dist.Raigad ] (Org.Accused Nos.1 & 3)
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Mr.Niranjan Mundargi for the Appellant in Appeal No.422/04.
Mr.P D Pise for the Appellant in Appeal No.15/04.
Mr.Shekhar A Ingawale i/by Mr. Ashoka Law Firm for Respondent No.1 in
Appeal No.207/04.
None present for the Respondent No.2 thought served in Appeal No.207/04.
Ms. S V Gajare, APP, for the State Respondents in Appeal Nos.422/04 &
15/04 and for the Appellant in Appeal No.207/04.
CORAM : NARESH H PATIL &
MRS.MRIDULA R BHATKAR, JJ
DATE : 07th JULY 2011
JUDGMENT : [PER NARESH H PATIL, J]
1
The State had prosecuted four accused persons for committing
offence punishable under Sections 302, 307, 120(b), 34 of the Indian Penal Code
r/w Sections 3(25)(b)(a) and 27 of the Arms Act respectively.
2 The accused were tried in Sessions Case No.178 of 2003 and
Sessions Case No.214 of 2003. The trial Court convicted Original Accused No.2
Manju Viranna Kantayya Rai for an offence punishable under section 302,
120(b) of the Indian Penal Code and sentenced to undergo life imprisonment and
to pay fine. He was also convicted for an offence punishable under Sections 3, 25,
and 27 of the Indian Arms Act and sentenced to undergo R.I. For five years and to
pay fine. Both the sentences were directed to be run concurrently.
Original Accused No.4 Sunil Motiram Katke was convicted under
Section 302 and 120(b) of the Indian Penal Code and sentenced to suffer life
imprisonment and to pay fine.
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Original Accused Nos. 1 Paresh Bhanjibhai Nanda @ Bhanushali and
Original Accused No.3 Vindo @ Ajay Narsingh Sahu were acquitted for the
offences punishable under Sections 302 and 120(b) of the Indian Penal Code by
giving benefit of doubt.
3 The prosecution case in substance is as under :-
Original Accused No.4 Sunil Katke was serving in Agricultural
Produce Market Committee office Navi Mumbai as a wireman. He was under
suspension at the relevant time when the incident in question took place as he
did not discharge his duty properly. Original Accused No.1 Paresh Nanda @
Bhanushali was working as a clearing agent of APMC Market at the relevant time.
Deceased Tambhale was the then secretary of APMC, Navi Mumbai, at the
relevant time. The prosecution alleges that Accused No.1 an octroi agent of the
APMC market had allowed vehicles to pass through the naka without paying any
charges/tax at the check post of APMC market. Due to this reason, he developed
grudge against deceased Tambhale. The prosecution alleged that Accused No.1
was in search of an opportunity to teach lesson to the deceased and accordingly
he joined hands with Accused No.4. It is the prosecution case that original
Accused Nos.1 and 4 conspired to cause bodily harm to the deceased and to
commit his murder. They took help of Original Accused No.2 Manjuviranna Rai
who shot dead deceased Tambhale on 24.12.2002. It is the case of the
prosecution that all these accused conspired together to kill Tambhale and in
furtherance of conspiracy they engaged service of Accused No.2 to kill the
deceased.
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4 Investigating machinery swung into action on a complaint filed by
Santosh Bansiram Kamble on 24/12/2002 in APMC police station Navi Mumbai,
Dist.Thane which was registered under C R No.I 163/2002 under Sections 302,
307 of the Indian Penal Code and Sections 3, 25, and 27 of the Arms Act.
5 According to the complainant on 24/12/2002 at about 7.00 am the
complainant was present on the main gate of the office of APMC being on duty as
a security guard. At about 11.00 am the secretary of APMC deceased Tambhale
got down from his car, the driver and one of the employees of APMC namely
Acharya were sitting in the car, the deceased after getting down of his car
proceeded to his office, complainant Santosh was taking a bag which was in the
hand of the secretary. At the same time he heard sound of firing, therefore he
turned back and noticed one person was firing on deceased Tambhale. He saw
deceased Tambhale fell down on the ground in pool of blood. He saw the said
assailant running away. The complainant started chasing him, he saw that the
assailant crossed the gate and went towards Mafco market and when the
assailant saw that somebody was chasing him, he turned back and fired two shots
from his pistol towards the complainant. The complainant was frightened. He
stopped chasing the assailant and taking benefit of the same, the assailant
vanished from the spot. The complainant returned to the spot. He saw that other
staff members were gathered there. Medical Officer of APMC hospital namely
Dr.Ghadge had reached there. He examined Tambhale and declared him dead.
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6 The police officer reached the spot. An offence was registered
accordingly. The dead body was sent for post mortem to NMMC hospital Vashi
Navi Mumbai. Investigating officer called two panchas and conducted spot
panchanama (Exhibit 94). He seized one empty cartridge and one lead shot
bullet and one Nokia mobile cell. He collected blood sample found on the floor.
He conducted panchanama of place where the assailant fired on the complainant.
He seized there from one empty cartridge. He kept both the empty cartridges and
lead shot bullet in a bottle and sealed it.
7
The investigating officer on 27/12/2002 recorded statements of
prosecution witnesses. On 28/12/2002 Accused No.1 Paresh Bhanusahali was
arrested. Statements of Deputy Secretary of APMC was recorded. The
investigating officer in furtherance of his investigation received information that
Accused Nos.2 and 3 were residing in Ajiwali, Tal. Panvel, Dist.Raigad. They
reached the said place, raided their room, arrested them and seized one revolver
and 4 live cartridges and some documents concerning APMC in connection with
suspension of Accused No.4 Sunil Katke. Accused Nos.2 and 3 were arrested on
4/1/2003. P C remand was obtained when they were produced before the
Magistrate. Clothes of accused No.2 were recovered from his village Ajivali. At his
behest, the investigating officer collected papers in connection with suspension of
Sunil Katke from AMPC office. P M Notes were collected. Articles seized
including the clothes of accused No.2 as well as the revolver and cartridges
recovered from him sent to CA and ballistics expert. The CA and Ballistics Expert
Reports are at Exhibit Nos.71, 72 and 74 to 76 respectively. Investigating officer
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obtained sanction to file charge sheet under Arms Act against Accused No.2
Manju vide Order Exhibit 105 and after completion of investigation on
27/03/2003 a charge-sheet vide No.29/2003 came to be filed against Accused
Nos.1 to 3 and absconding Accused Sunil Katke. On 24/4/2003 the police
reached the premises where Accused No.4 Sunil Katke was said to be residing,
arrested him and seized from him, identity card, pass port and receipt of pay and
park. His PCR was obtained and accordingly supplementary charge-sheet against
Accused No.4 was filed in the Court of JMFC at Vashi. All the accused pleaded not
guilty to the crime and they claimed to be tried.
8 The prosecution as per Section 294 of the Criminal Procedure Code
called upon the defence to admit or deny some documents. All the accused had
engaged their respective advocates who had admitted said documents. The trial
Court had drawn a list of the 47 such documents.
9 The prosecution to establish charge of conspiracy had examined PW.
Nos.2, 6 and 9. P.W. No.1 Santosh Bansiram Kamble, who is the complainant, was
working as a guard in the office of APMC Vashi Navi Mumbai at the relevant time.
He deposed before Court that when Tambhale reached his office and he was
about to take his bag, he heard sound of firing, he turned back and saw that
Tambhale was shot at and one person was running from the spot. He identified
Accused No.2 as the said person. He chased him and tried to catch hold of him
but since Accused No.2 fired two shots at him from his pistol, he dropped his
efforts to catch hold of Accused No.2. According to this witness, Accused No.4
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Katke was serving as wireman in APMC market and at the relevant time he was
under suspension. PW No.1 identified the revolver Article No.11. He admitted
that the person who had fired at Tambhale was seen by him for the first time.
The witness claims that said assailant was wearing white coloured shirt of verticle
linings. He was of fair complexion. Test identification parade was arranged by
police on 30/1/2003. Witness identified Accused No.2.
10 P.W. No.2 is Sachin Balrkishna Gaikwad. At the relevant time, he
was running hotel on rent known as Mast Bar. He deposed that Accused No.2
came to him in his hotel and requested him to engage him in his hotel as a
Stewart. Accused No.2 started working in the hotel as a waiter. After some time
witness closed his hotel business and started new business of selling fish. Some
time in the month of July 2002, Accused No.2 along with one Sunil met this
witness Sachin. Thereafter they went to room of Accused No.2. Witness deposed
that Accused Nos. 2 and 4 used to come to meet him intermittently after 4-5
days. One day he received mobile call given on his cell phone. Accused No.2 was
the caller who called him at his room situated at Koparkhairne. Accordingly PW
2 went there. Accused No.4 was present who disclosed that he was removed
from services of APMC market Vashi. Accused No.2 was also there. During the
course of discussion, Accused No.4 told the witness that he was going to kill
Tambhale. PW No.2 further deposed that he was asked to accompany Accused
No.4 but the witness refused to participate object and he returned home. Again
after one month, Accused No.4 had talks with him. He informed the witness that
he had already received a gun and asked the witness whether he was joining
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them in the operation of killing Tambhale. PW No.2 stated that after 4-5 days,
he learnt through a news paper that Tambhale was killed in the premises of
APMC market Vashi as someone had shot at him. PW No.2 identified Accused
Nos.2 and 4 in the Court. His statement under Section 164 of the Criminal
Procedure Code was recorded by the JMFC Vashi. This witness proved the
contents of his statement (Exhibit 15). In the cross examination PW No.2 clearly
deposed that he had not personally seen the weapon which was used in
commission of offence. An omission is recorded in his evidence to the effect that
he did not state before police or JMFC Vashi while recording his statements that
Accused Nos.2 and 4 informed that they had acquired a gun. The witness did not
inform the police in respect of the conspiracy.
11 PW No.4 is Arvind Eknath Dalvi, who was at the relevant time in the
service of BSS company as a security guard. This witness was declared hostile by
the prosecution. Statement of this witness under Section 164 of the Criminal
Procedure Code was recorded.
12 PW No.6 Narayan Nayak, who was serving as a Stewart in hotel
Athithi Bar, Sanpad, deposed before Court that Accused No.2 was also working
with him as a waiter and he was removed from the service due to his
misbehaviour. The witness was also removed from the services of Hotel Athithi.
PW No.6 thereafter started working in hotel Mast Bar. He worked there for about
15-20 days and then left the services. He thereafter started going to Sandeep
hotel where he met Santosh the manager of the said hotel. He even met with
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Accused No.4 Katke who used to come there to drink liquor. According to this
witness, Accused No.4 one day called him near Soniya Bar. He took him to
Sandeep Bar and disclosed him that there is one person by name Tambhale who
had removed him from the services and he wanted to cut his hands and legs.
According to PW No.6, Accused No.2 was present at that time. They consumed
liquor. But PW No.6 refused to accept proposal of Accused No.4 to participate in
the plan. Again after 4-5 days, Accused Nos.4 met him. He took him to a place
where Accused Nos.2 and 3 were already present. They again had talks and
discussion. Accused No.4 disclosed his intention and plan that he was going to
cut the limbs of Tambhale and kill him as they acquired a pistol. After coming to
know of the plan, PW No.6 did not meet Accused Nos.2 and 4. Later on he came
to know that Tambhale was murdered. He suspected that Accused N0.4 was
planning to kill Tambhale and he might have killed him by Accused No.4.
Statement of this witness under Section 164 of the Criminal Procedure Code was
recorded. In his cross examination this witness deposed that he did not disclose
the discussion and plan to his master as he did not feel it necessary to tell this fact
to his master. The witness could not give the exact date and place where he met
Accused No.4.
13 P.W.No.9 was also examined by the prosecution to establish the
charge of conspiracy. The counsel appearing for the Accused submitted that the
trial Court has not believed the evidence of PW No.9. PW No.9 was residing in
Sector 15, Navjivan Society Airoli Navi Mumbai. There are material omissions in
the evidence of this witness in respect of the statements recorded by the police
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and JMFC on the subject of Accused Nos.1 and 4 planning to murder Tambhale.
14 PW No.5 Rajendra Mahadappa Tikekar – Police Constable, who was
working in the office of ACP, Crime Vashi Navi Mumbai deposed before Court that
while he was sitting in the office he saw through his window one person running
away from the gate of market. He identified the said person as Accused No.2 in
the Court. This witness identified the accused in Central Prison Thane in Test
Identification Parade. This witness informed on telephone APMC Police Station
but he did not go to lodge complaint. It is true that his statement was recorded
after 10 days of the incident.
15 PW No.7 is Manji Valji Bhanushali. He was engaged in the business
of stitching gunny bags in Mafco Market APMC, Vashi. At the relevant time and
date he saw one person running away from the road leading to vegetable market
from Mafco Market, he was having one revolver in his hand and one watchman of
APMC was chasing him and trying to catch hold of him. This witness identified
Accused No.2 to be the same person who was running armed with a revolver. He
identified Accused No.2 in Central Prison Thane.
16 PW No.8 is Dr.Bhushan Vilasrao Jain, who conducted autopsy of the
corpse. The doctor noticed following injuries on the person of deceased :-
1 Firearm wound of entry over Rt. Forehead 3
cm about lateral 1/3 of Rt. Eye brow and 6 cm lateral to
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midline of size 0.8 cm, in diameter with 0.2 cm circular
aberaded coller margins inverted. No evidence of tattooing
blackening, signing.
2 Firearm wound of exist over Rt. occipital region 9 cm
from rt. mastoid and 5 cm. lateral to midline of size 1.2 cm
everted margins, active bleeding, brain tissue pointing out.
No evidence of Ad-coller singing, blackening, tattooing.
Brack – skin, subcutaneous tissue, periosteum outer
and inner table of skull inverted inside the skull cavity, dure
and arachnoid matter, right frontal lobe of brain passing
posteriorly in saggital plane-occipital lobe of brain,
arachnoid and dura matter, inner and outer table of skull
bone everted towards the scalp and scalp. Blood tissue
around the track shows evidence of blood infiltration.
All injuries were ante mortem, according to the doctor. The cause of death was
shock and haemorrhage due to fire arm injuries. Accordingly the doctor
prepared PM Notes (Exhibit 31). The doctor deposed before court that the death
of deceased is possible by a weapon like Article No.11 which was shown to the
doctor in Court.
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17 PW No.10 is Ramesh Namdeo Malusare acted as a pancha. When
the police raided the premises of Accused Nos. 2 and 3, they recovered certain
news papers concerning APMC and two bags. They seized one revolver Article
11 and two empty and two live cartridges Article 12. All the articles were sealed
in presence of pancha. This witness proved the contents of Panchanama (Exhibit
38).
18 PW No.11 is Bhaskar Bhaban Khute who was in service of APMC
since 2002 as a Deputy Secretary. He supported the prosecution case. He
identified Accused Nos.1 and 4 before Court.
19 P.W.No.12 is Ramesh Babu Rao. He acted as pancha in respect of
discovery panchanama regarding clothes of Accused No.2 were seized under
panchanama. The Panchanama (Exhibit 41) is accordingly proved.
20 PW No.13 Deelip Rangrao Nalwade is the Investigating Officer. He
was at the relevant time having Additional charge of APMC Police Station Vashi
Navi Mumbai. He recorded FIR given by Santosh Kamble (Exhibit 13). This
witness deposed before court that he conducted spot panchanama (Exhibit 94).
While conducting the spot panchanama he seized one empty cartridge and one
lead shot bullet and one nokia mobile cell phone from the spot where the dead
body was lying. He also conducted spot panchanama where Accused No.2 had
fired at the complainant. He seized one empty cartridge fired against the
complainant. He sealed them and sent them to ballistics expert. Accordingly
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panchanama was drawn.
21 PW 14 is Ashok Vankatroa Gaikwad, Senior PI, who narrated detail
progress of the investigation, the documents relating to suspension of Accused
No.4, various documents from the office record of APMC including copy of
minutes of meeting. He has proved statements recorded under Section 164 of
the Criminal Procedure Code. He had also proved CA reports (Exhibits 71 and
72) and ballistics reports (Exhibits 75 to 76) . The defence had cross examined
this witness accordingly.
22 Mr.Niranjan Mundargi, the learned counsel appearing for Original
Accused No.2 submitted that Accused No.2 is falsely implicated in this crime. He
was not the assailant neither he had used fire arm to shoot at deceased
Tambhale. He had no enmity with deceased Tambhale. Neither there was any
motive to kill deceased. The prosecution has failed to establish any connectivity
between the offence and Accused No.2. The learned counsel submitted that the
description of the assailant as given by the prosecution witnesses does not match
with the actual appearance of Accused No.2. The colour of the shirt also does
not match as described by the witnesses. According to the witnesses, the
assailant, after firing, ran away, this itself demonstrate that there was no chance
of PW No.1, or PW Nos. 5 and 7 to see and identify Accused No.2. The
identification parades held do not inspire confidence as persons having dark
complexion were standing in the identification parades which helped the
prosecution witnesses to identify Accused No.2 as he is a person of fair
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complexion. On the issue of conspiracy the learned counsel for Accused No.2
submitted that the evidence of witnesses i.e. PW Nos. 4 and 9 is not supporting
the prosecution case. The prosecution ought to have provided required details in
respect of the conspiracy allegedly hatched by Accused No.2 along with other
accused persons. In absence thereof the charge of conspiracy shall fail against
accused persons. While commenting upon Test Identification Parades, the learned
counsel submitted that the person who was acted as panch in respect of recovery
under Section 27 was utilized for the purpose of Test Identification Parade. The
prosecution failed to take required precaution in this case. Lastly it was
submitted by the learned counsel for Accused No.2 that for want of sanction
under Section 39 of the Arms Act, the charge under Arms Acts shall also fail.
23 Mr.P D Pise, the learned counsel appearing for Original Accused No.
4 submitted that the PW No.4 turned hostile and PW No.9 was disbelieved by the
trial Court. The prosecution has failed to establish charge of conspiracy against
Accused No.4. He submitted that Accused No.4 was never suspended, therefore,
there was no motive for Accused No.4 to cause any bodily harm to deceased
Tambhale. He submitted that PW No.2 has criminal background, therefore, the
police utilized his services. The learned counsel for Accused No.4 submitted that
the prosecution has failed to prove that Accused No.4 was really suspended from
the service of APMC and, therefore, there was no intention on the part of
Accused No.4 to commit crime neither there was any reason to commit such
serious offence. He submitted that there was no proof of conspiracy. According
to the learned counsel, the prosecution ought to have led evidence in respect of
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details of accused persons hatching conspiracy which is lacking in this case.
24 Mr.Shekhar A Ingawale, the learned counsel appearing for the
acquitted Accused No.1, submitted that the trial Court has properly appreciated
the evidence and acquitted Accused No.1. Accused No.1 had not taken any
active part in commission of offence. The learned counsel submitted that there
was delay in recording statements of material witnesses, therefore, the
prosecution case cannot be believed against Accused No.1. He submitted that
Accused No.1 had no personal enmity with deceased Tambhale. He submitted
that there was no reason for Accused No.1 to help Accused No.4 in conspiracy to
kill Tambhale. He submitted that PW Nos. 2 and 9 have criminal background,
therefore, their evidence is required to be scrutinized with great care and
caution. He lastly submitted that in the light of material omissions and
contradictions occurring in the prosecution case, the view adopted by the trial
Court in acquitting Accused No.1 is a possible view and, therefore the order of
acquittal of the trial court is required to be confirmed by this Court.
25 Ms Gajare, the learned APP appearing for the State submitted that
the prosecution had investigated this case promptly and had led credible
evidence against the accused persons on the issue of conspiracy. The prosecution
witness Nos.2 and 6 are most reliable witnesses. On the issue of actual assault,
the learned APP placed reliance on the evidence of PW Nos.1 and 5. He
submitted that the evidence of these witnesses is not shaken. They are
independent witnesses. They have no grudge against the accused persons. Their
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presence at the scene of offence was natural. She submitted that there is
sufficient material on record to show that Accused No.4 Sunil Katke was
suspended from the service of APMC for his misbehaviour, and therefore, he
conspired with other accused to eliminate the secretary of APMC deceased
Tambhale. The learned APP submitted that the evidence of PW 6 is sufficient to
show that Accused Nos.2, 3 and 4 conspired to kill Tambhale. Statement under
Section 164 of the Criminal Procedure Code of this witness was also recorded.
Though PW No.6 did not refer to the role of Accused No.3, according to learned
APP, Accused No.3 was present in the meeting. The learned APP submitted that
this is a serious case where an employee enters into conspiracy to successfully
eliminate responsible office bearer of APMC. The facts of the case are shocking
in nature and reveals criminal tendency on the part of the main Accused No.4 to
conspire and eliminate the secretary of APMC deceased Tambhale. According to
the learned APP, this not a case where mercy or slightest leniency should be
shown to the accused persons. The learned APP ultimately pleaded that the
order of acquittal passed by the trial Court requires to be reversed and the
acquitted accused be convicted accordingly.
26 We have perused the material placed on record. We have gone
through the evidence produced on record and considered the submissions of the
learned counsel for the parties.
27 The principle governing offence of conspiracy under Section 120B
of the Indian Penal Corder is required to be first considered in the fact of the
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present case. For that purpose we refer to observations of the Apex Court in Para
342 in the case of Ram Narayan Popli v/s. CBI reported in (2003) 3 SCC 641.
“The elements of a criminal conspiracy have been
stated to be : (a) an object to be accomplished, (b) a plan or
scheme embodying means to accomplish that object, (c) an
agreement or understanding between two or more of theaccused persons whereby, they become definitely committed
to cooperate for the accomplishment of the object by the
means embodied in the agreement, or by any effectual
means, and (d) in the jurisdiction where the statute
required, an overt act. The essence of a criminal conspiracyis the unlawful combination and ordinarily the offence is
complete when the combination is framed. Law makingconspiracy a crime is designed to curb immoderate power to
do mischief which is gained by a combination of the means.
The encouragement and support which co-conspirators give
to one another rendering enterprises possible which, if leftto individual effort, would have been impossible, furnish
the ground for visiting conspirators and abettors with
condign punishment.
For an offence punishable under Section 120-B, the
prosecution need not necessarily prove that the perpetratorsexpressly agree to do or cause to be done illegal act; the
agreement may be proved by necessary implication. Offence
of criminal conspiracy has its foundation in an agreement to
commit an offence. A conspiracy consists not merely in the
intention of two or more, but in the agreement of two ormore to do an unlawful act by unlawful means. So long as
such a design rests in intention only, it is not indictable.
When two agree to carry it into effect, the very plot is an act
in itself, and an act of each of the parties, promise against
promise, actus contra actum, capable of being enforced, iflawful, punishable if for a criminal object or for use of
criminal means.
28 The prosecution has examined PW Nos.2, 4, 6 and 9 on the issue of
conspiracy. It has come on record that PW No.4 has not supported the
prosecution and PW No.9 was not believed by the trial Court on the issue of
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conspiracy. The prosecution therefore relied upon the evidence of PW Nos. 2 and
6. PW No.2 had come out with minute details as to how at the instance of
Accused No.4 meetings were arranged and Accused No.4 with help of other
accused persons planned to commit murder of then secretary of APMC Tambhale,
they have identified Accused Nos.2 and 4 and have also narrated details and
discussion which took place amongst themselves. No sooner they come to know
about the serious design lurking in the mind of Accused Nos.2 and 4, they de-
associated themselves from attending the meetings wherein Accused Nos.2 and 4
were present. PW No.6 had referred to the presence of Accused No.3 but he did
not refer that Accused No.3 had taken any active part in the process of
conspiracy or designing the plan to commit murder of Tambhale. The defence
has failed to establish that the evidence of PW Nos.2 and 6 is not credit worthy.
From the evidence on record we find that PW Nos.2 and 6 are natural witnesses.
They had no reason to falsely implicate Accused Nos.2 and 4. Their versions are
not exaggerating. No sooner they came to know that Accused No.4 is hatching
conspiracy, they have detached themselves and decided not to associate with
Accused. They are parties to the discussion that Accused No.4 was suspended
from services and deceased Tambhale was responsible for the same. From their
evidence it is established that a revolver was procured and Accused No.2 was to
execute the plan and commit murder of Tambhale. The statements of the
witnesses were recorded under Sections 164 of the Criminal Procedure Code.
Though the Defence tried to point out certain infirmities in the evidence of the
material witnesses, but the same do not affect the truthfulness and reliabilities of
these witnesses.
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29 On the issue of actual assault, the prosecution has placed reliance
on the evidence of PW Nos.1, 5 and 7. PW No.1 was a person who was very
close to deceased Tambhale. When he was entering in the premises, no sooner
he heard sound of firing, he turned back and saw Tambhale fell down on the
ground in pool of blood and the assailant was running away. He started chasing
him. When the assailant saw him, he fired two shots at him. It is but natural that
to save his life, PW No.1 stopped chasing and rushed back to his master-the
secretary who was thereafter taken to hospital where he was declared dead. His
evidence is natural. He is independent witness. He has no grudge or enmity
against Accused Nos.2 and 4. He identified the accused No.2 in Test
Identification Parade. We do not find any difficulty in accepting the evidence of
PW No.1.
PW No.5 Tikekar, working in the office of ACP, had seen the
assailant after he had assaulted deceased Tambhale. He also identified Accused
No.2 in Test Identification Parade.
PW No.7 Bhanushali is the person who saw Accused No.2 with
revolver in his hand and saw that one watchman of APMC was chasing him. He
identified Accused No.2 in Test Identification Parade. His presence was also
natural as he was doing his business of stitching gunny bags in Mafco Market
APMC, Vashi.
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20 Appeal Nos.422/04, 15/04 & 207/04
The submission of the learned counsel for the Accused that Test
Identification Parade could not be held to be trustworthy, cannot be accepted in
the light of the evidence brought on record. The prosecution has led reliable
evidence to show that Accused No.2 had fired at Tambhale. Tambhale received
bullet injury due to which he died. Accused No.2 even fired at PW No.1 when he
tried to catch hold of him. The act of Accused No.2 is a part of conspiracy
hatched which is clearly established by the prosecution from the evidence on
record. The reports of the Chemical Analyzer and Ballistics Expert have
corroborated the prosecution case against Accused No.2. The clothes of Accused
No.2 had blood stains. A pistol was seized from him.
30 Considering the evidence on record, documents collected from
APMC Office, it is amply proved by the prosecution that Accused No.4 had a
reason to have serious grudge against Tambhale. It is not necessary to go in
minute details as to whether order of suspension was served on Accused No.4 by
APMC office. Documents on record amply suggests that the conduct of Accused
No.4 was found to be objectionable. The proceedings against him were initiated
by the APMC.
31 From the evidence on record, we do not find that acquitted Accused
No.1 Paresh Bhanushali and Accused No.3 Vindo Sahu had actually participated
in conspiracy to commit murder of Tambhale. Even if they were present in one or
two meetings, it can not be inferred from the facts and circumstances of the case
that they can be held guilty for the charge of conspiracy to commit murder of
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21 Appeal Nos.422/04, 15/04 & 207/04
Tambhale. The reasons given by the trial Court in acquitting Accused Nos.1 and
3 seem to be reasonable and the view taken by the trial court is a possible view in
recording the order of acquitting in respect of Accused Nos.1 and 3.
32 We find that the trial Court had reasonably appreciated the
evidence placed on record and had awarded conviction and sentence against
Accused Nos.2 and 4. An order of grant of sanction was passed in view of the
provisions of Section 39 of the Arms Act. In the light of the facts and
circumstances of the case and the evidence brought on record we do not find that
there is any infirmity or error in the judgment and order of conviction passed
against Accused Nos.2 and 4. We confirm the order of conviction against Accused
Nos.2 and 4.
Criminal Appeal No.422 of 2004 filed by Original Accused No.2
Manjuviranna Kantayya Rai and Criminal Appeal No.15 of 2004 filed by Original
Accused No.4 Sunil Motiram Katke are dismissed. Criminal Appeal No.207 of
2004 filed by the State against order of acquittal in respect of Original Accused
No.1 Paresh Bhanjibhai Nanda @ Bhanushali and Original Accused No.3 Vinod @
Ajay Narsingh Sahu stands dismissed.
(MRS.MRIDULA R BHATKAR J.) (NARESH H PATIL, J.)
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