{"id":79923,"date":"2011-07-07T00:00:00","date_gmt":"2011-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manjuviranna-kantayya-rai-vs-the-state-of-maharashtra-on-7-july-2011"},"modified":"2018-04-29T03:30:53","modified_gmt":"2018-04-28T22:00:53","slug":"manjuviranna-kantayya-rai-vs-the-state-of-maharashtra-on-7-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manjuviranna-kantayya-rai-vs-the-state-of-maharashtra-on-7-july-2011","title":{"rendered":"Manjuviranna Kantayya Rai vs The State Of Maharashtra on 7 July, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Manjuviranna Kantayya Rai vs The State Of Maharashtra on 7 July, 2011<\/div>\n
Bench: Naresh H. Patil, Mridula Bhatkar<\/div>\n
                                         1               Appeal Nos.422\/04, 15\/04 & 207\/04\n\n    lgc\n\n                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                      \n                            CRIMINAL APPELLATE JURISDICTION\n\n                                     APPEAL NO.422 OF 2004\n\n\n\n\n                                                              \n          Manjuviranna Kantayya Rai                   ]\n          Age 22 years, residing at Ajivali,          ]\n          Tal.Panvel, District Thane                  ]       ... Appellant\n\n\n\n\n                                                             \n          At present in Kolhapur Central Jail, Kolhapur]      (Org.Accused No.2)\n\n                      versus\n\n          The State of Maharashtra                      ]     ... Respondent.<\/pre>\n
                                   ig    ALONG WITH\n                                     APPEAL NO.15 OF 2004\n\n          Sunil Motiram Katke,                          ]\n                                 \n          Age 33  years, Occ : residing at Navjeevan,   ]\n          Society, A\/17, Room No.1 and 2,               ]     ... Appellant\n          Sector 15, Airoli, Navi Mumbai                ]     (org.Accused No.4.)\n              \n\n                      versus\n           \n\n\n\n          The State of Maharashtra                      ]     ... Respondent.\n\n                                         ALONG WITH\n                                     APPEAL NO.207 OF 2004\n\n\n\n\n\n          The State of Maharashtra                      ]     ... Appellant.\n\n                      versus\n\n\n\n\n\n          1.  Paresh Bhanjibhai Nanda @ Bhanushali ]\n               Age about 43 yrs. Occ : Business    ]\n               R\/at Ghatkopar, Mumbai              ]\n                                                   ]\n          2.  Vinod @ Ajay Narsingh Sahu           ]\n               Age about 22 yrs. , R\/o Ajivali     ]          ... Respondents\n               Tal. Panvel, Dist.Raigad            ]          (Org.Accused Nos.1 & 3)\n\n\n\n\n                                                              ::: Downloaded on - 09\/06\/2013 17:27:42 :::<\/span>\n                                            2                Appeal Nos.422\/04, 15\/04 & 207\/04<\/span>\n\n<\/pre>\n
    Mr.Niranjan Mundargi for the Appellant in Appeal No.422\/04.
\n    Mr.P D Pise for the Appellant in Appeal No.15\/04.\n<\/p>\n
    Mr.Shekhar A Ingawale i\/by Mr. Ashoka Law Firm for Respondent No.1 in <\/p>\n
    Appeal No.207\/04.\n<\/p>\n
    None present for the Respondent No.2 thought served in Appeal No.207\/04.
\n    Ms.   S   V   Gajare,   APP,   for   the   State   Respondents   in   Appeal   Nos.422\/04   & <\/p>\n
    15\/04 and for the Appellant in Appeal No.207\/04.\n<\/p>\n
                                    CORAM :         NARESH H PATIL &\n\n\n\n\n                                                                 \n                                                    MRS.MRIDULA R BHATKAR, JJ\n                                    DATE     :       07th  JULY 2011\n\n    JUDGMENT : [PER NARESH H PATIL, J]\n\n\n\n\n                                                    \n    1<\/span>\n                                  \n<\/pre>\n
                     The   State   had   prosecuted   four   accused   persons   for   committing <\/p>\n
    offence punishable under Sections 302, 307, 120(b), 34 of the Indian Penal Code <\/p>\n
    r\/w Sections 3(25)(b)(a) and 27 of the Arms Act respectively.\n<\/p>\n
    2                The   accused   were   tried   in   Sessions   Case   No.178   of   2003   and <\/p>\n
    Sessions Case No.214 of 2003.  The trial Court convicted Original Accused No.2 <\/p>\n
    Manju   Viranna   Kantayya   Rai     for   an   offence   punishable   under   section   302, <\/p>\n
    120(b) of the Indian Penal Code and sentenced to undergo life imprisonment and <\/p>\n
    to pay fine. He was also convicted for an offence punishable under Sections 3, 25, <\/p>\n
    and 27 of the Indian Arms Act and sentenced to undergo R.I. For five years and to <\/p>\n
    pay fine.  Both the sentences were directed to be run concurrently.\n<\/p>\n
                     Original  Accused  No.4   Sunil   Motiram  Katke  was convicted  under <\/p>\n
    Section 302 and 120(b) of the Indian Penal Code and sentenced to suffer life <\/p>\n
    imprisonment and to pay fine.\n<\/p>\n
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\n                                            3                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
                    Original Accused Nos. 1 Paresh Bhanjibhai Nanda @ Bhanushali and <\/p>\n
    Original   Accused   No.3   Vindo   @   Ajay   Narsingh   Sahu   were   acquitted   for   the <\/p>\n
    offences punishable under Sections 302 and 120(b) of the Indian Penal Code by <\/p>\n
    giving benefit of doubt.\n<\/p>\n
    3               The prosecution case in substance is as under :-\n<\/p>\n
                    Original   Accused   No.4   Sunil   Katke   was   serving   in   Agricultural <\/p>\n
    Produce   Market   Committee   office   Navi   Mumbai   as   a   wireman.   He  was  under <\/p>\n
    suspension at the relevant time when the incident in question took place as he <\/p>\n
    did   not   discharge   his   duty   properly.     Original   Accused   No.1   Paresh   Nanda   @ <\/p>\n
    Bhanushali was working as a clearing agent of APMC Market at the relevant time.\n<\/p>\n
    Deceased   Tambhale   was   the   then   secretary   of   APMC,   Navi   Mumbai,   at   the <\/p>\n
    relevant time.  The prosecution alleges that Accused No.1 an octroi agent of the <\/p>\n
    APMC market had allowed vehicles to pass through the naka without paying any <\/p>\n
    charges\/tax at the check post of APMC market.   Due to this reason, he developed <\/p>\n
    grudge against deceased Tambhale.   The prosecution alleged that Accused No.1 <\/p>\n
    was in search of an opportunity to teach lesson to the deceased and accordingly <\/p>\n
    he   joined   hands   with   Accused   No.4.   It   is   the   prosecution   case   that   original <\/p>\n
    Accused   Nos.1   and   4   conspired   to   cause   bodily  harm  to   the   deceased  and   to <\/p>\n
    commit his murder. They took help of Original Accused No.2 Manjuviranna Rai <\/p>\n
    who   shot   dead   deceased   Tambhale   on   24.12.2002.     It   is   the   case   of   the <\/p>\n
    prosecution  that  all   these   accused   conspired   together  to   kill   Tambhale  and   in <\/p>\n
    furtherance   of   conspiracy   they   engaged   service   of   Accused   No.2   to   kill   the <\/p>\n
    deceased.\n<\/p>\n
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\n                                             4                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    4               Investigating machinery swung into action on a complaint filed by <\/p>\n
    Santosh Bansiram Kamble on 24\/12\/2002 in APMC police station Navi Mumbai, <\/p>\n
    Dist.Thane which was registered under C R No.I 163\/2002 under Sections 302, <\/p>\n
    307 of the Indian Penal Code and Sections 3, 25, and 27 of the Arms Act.\n<\/p>\n
    5               According to the complainant on 24\/12\/2002 at about 7.00 am the <\/p>\n
    complainant was present on the main gate of the office of APMC being on duty as <\/p>\n
    a security guard.  At about 11.00 am the secretary of APMC deceased Tambhale <\/p>\n
    got down from his car, the driver and one of the employees of APMC namely <\/p>\n
    Acharya   were   sitting   in   the   car,   the   deceased   after   getting   down   of   his   car <\/p>\n
    proceeded to his office,  complainant Santosh was taking a bag which was in the <\/p>\n
    hand of the secretary.   At the same time he heard sound of firing, therefore he <\/p>\n
    turned back and noticed one person was firing on deceased Tambhale.   He saw <\/p>\n
    deceased Tambhale fell down on the ground in pool of blood.   He saw the said <\/p>\n
    assailant running away. The complainant started chasing him, he saw that the <\/p>\n
    assailant   crossed   the   gate   and   went   towards   Mafco   market   and   when   the <\/p>\n
    assailant saw that somebody was chasing him, he turned back and fired two shots <\/p>\n
    from his pistol towards the complainant.   The complainant was frightened. He <\/p>\n
    stopped   chasing   the   assailant   and   taking   benefit   of   the   same,   the   assailant <\/p>\n
    vanished from the spot.  The complainant returned to the spot.  He saw that other <\/p>\n
    staff members were gathered there.   Medical Officer of APMC hospital namely <\/p>\n
    Dr.Ghadge had reached there. He examined Tambhale and declared him dead.\n<\/p>\n
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\n                                             5                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    6               The   police   officer   reached   the   spot.   An   offence   was   registered <\/p>\n
    accordingly. The dead body was sent for post mortem to NMMC hospital Vashi <\/p>\n
    Navi   Mumbai.     Investigating   officer   called   two   panchas   and   conducted   spot <\/p>\n
    panchanama   (Exhibit   94).    He   seized   one   empty   cartridge   and   one   lead   shot <\/p>\n
    bullet and one Nokia mobile cell.  He collected blood sample found on the floor.\n<\/p>\n
    He conducted panchanama of place where the assailant fired on the complainant.\n<\/p>\n
    He seized there from one empty cartridge.  He kept both the empty cartridges and <\/p>\n
    lead shot bullet in a bottle and sealed it.\n<\/p>\n
    7<\/span><\/p>\n
                    The   investigating   officer   on   27\/12\/2002   recorded   statements   of <\/p>\n
    prosecution witnesses.   On 28\/12\/2002 Accused No.1 Paresh Bhanusahali was <\/p>\n
    arrested.     Statements   of   Deputy   Secretary   of   APMC   was   recorded.   The <\/p>\n
    investigating officer in furtherance of his investigation received information that <\/p>\n
    Accused   Nos.2   and   3   were   residing   in   Ajiwali,   Tal.   Panvel,   Dist.Raigad.   They <\/p>\n
    reached the said place, raided their room, arrested them and seized one revolver <\/p>\n
    and 4 live cartridges and some documents concerning APMC in connection with <\/p>\n
    suspension of Accused No.4 Sunil Katke. Accused Nos.2 and 3 were arrested on <\/p>\n
    4\/1\/2003.     P   C   remand   was   obtained   when   they   were   produced   before   the <\/p>\n
    Magistrate. Clothes of accused No.2 were recovered from his village Ajivali. At his <\/p>\n
    behest, the investigating officer collected papers in connection with suspension of <\/p>\n
    Sunil   Katke   from   AMPC   office.     P   M   Notes   were   collected.     Articles   seized <\/p>\n
    including   the   clothes   of   accused   No.2   as   well   as   the   revolver   and   cartridges <\/p>\n
    recovered from him sent to CA and ballistics expert.  The CA and Ballistics Expert <\/p>\n
    Reports are at Exhibit Nos.71, 72 and 74 to 76 respectively. Investigating officer <\/p>\n
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\n                                           6                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    obtained   sanction   to   file   charge   sheet   under   Arms   Act   against   Accused   No.2 <\/p>\n
    Manju   vide   Order   Exhibit   105   and   after   completion   of   investigation   on <\/p>\n
    27\/03\/2003 a charge-sheet vide No.29\/2003 came to be filed against Accused <\/p>\n
    Nos.1   to   3   and   absconding   Accused   Sunil   Katke.     On   24\/4\/2003   the   police <\/p>\n
    reached the premises where Accused No.4 Sunil Katke was said to be residing, <\/p>\n
    arrested him and seized from him, identity card, pass port and receipt of pay and <\/p>\n
    park.  His PCR was obtained and accordingly supplementary charge-sheet against <\/p>\n
    Accused No.4 was filed in the Court of JMFC at Vashi. All the accused pleaded not <\/p>\n
    guilty to the crime and they claimed to be tried.\n<\/p>\n
    8              The prosecution as per Section 294 of the Criminal Procedure Code <\/p>\n
    called upon the defence to admit or deny some documents.  All the accused had <\/p>\n
    engaged their respective advocates who had admitted said documents.  The trial <\/p>\n
    Court had drawn a list of the 47 such documents.\n<\/p>\n
    9              The prosecution to establish charge of conspiracy had examined PW.\n<\/p>\n
    Nos.2, 6 and 9.  P.W. No.1 Santosh Bansiram Kamble, who is the complainant, was <\/p>\n
    working as a guard in the office of APMC Vashi Navi Mumbai at the relevant time.\n<\/p>\n
    He   deposed   before   Court   that   when   Tambhale   reached   his   office   and   he   was <\/p>\n
    about to take his bag, he heard sound of firing, he turned back and saw that <\/p>\n
    Tambhale was shot at and one person was running from the spot. He identified <\/p>\n
    Accused No.2 as the said person. He chased him and tried to catch hold of him <\/p>\n
    but since Accused No.2 fired two shots at him from his pistol, he dropped his <\/p>\n
    efforts to catch hold of Accused No.2.   According to this witness, Accused No.4 <\/p>\n
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\n                                            7                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    Katke was serving  as wireman in APMC market and at the relevant time he was <\/p>\n
    under suspension.   PW No.1 identified the revolver Article No.11.  He admitted <\/p>\n
    that the person who had fired at Tambhale was seen by him for the first time.\n<\/p>\n
    The witness claims that said assailant was wearing white coloured shirt of verticle <\/p>\n
    linings. He was of fair complexion. Test identification parade was arranged by <\/p>\n
    police on 30\/1\/2003.  Witness identified Accused No.2.\n<\/p>\n
    10              P.W. No.2 is Sachin Balrkishna  Gaikwad. At the relevant time, he <\/p>\n
    was running hotel on rent known as Mast Bar.   He deposed that Accused No.2 <\/p>\n
    came   to   him in  his  hotel   and   requested   him  to   engage   him  in  his  hotel   as   a <\/p>\n
    Stewart.  Accused No.2 started working in the hotel as a waiter.  After some time <\/p>\n
    witness closed his hotel business and started new business of selling fish.  Some <\/p>\n
    time in the month of July 2002, Accused No.2 along with one Sunil met this <\/p>\n
    witness Sachin.  Thereafter they went to room of Accused No.2.  Witness deposed <\/p>\n
    that Accused Nos. 2 and 4 used to come to meet him intermittently   after 4-5 <\/p>\n
    days.  One day he received mobile call given on his cell phone.  Accused No.2 was <\/p>\n
    the caller who called him at his room situated at Koparkhairne.  Accordingly PW <\/p>\n
    2 went there.   Accused No.4 was present who disclosed that he was removed <\/p>\n
    from services of APMC market Vashi.  Accused No.2 was also there.  During the <\/p>\n
    course   of  discussion,  Accused   No.4   told   the  witness  that  he  was  going  to   kill <\/p>\n
    Tambhale.   PW No.2 further deposed that he was asked to accompany Accused <\/p>\n
    No.4 but the witness refused to participate object and he returned home.  Again <\/p>\n
    after one month, Accused No.4 had talks with him. He informed the witness that <\/p>\n
    he had already received a gun and asked the witness whether he was joining <\/p>\n
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\n                                             8                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    them in the operation of killing Tambhale.   PW No.2 stated that after 4-5 days, <\/p>\n
    he   learnt   through   a   news   paper   that   Tambhale   was   killed   in   the   premises   of <\/p>\n
    APMC market Vashi as someone had shot at him.   PW No.2 identified Accused <\/p>\n
    Nos.2   and   4   in   the   Court.     His   statement   under   Section   164   of   the   Criminal <\/p>\n
    Procedure   Code   was   recorded   by   the   JMFC   Vashi.   This   witness   proved   the <\/p>\n
    contents of his statement (Exhibit 15). In the cross examination PW No.2 clearly <\/p>\n
    deposed   that   he   had   not   personally   seen   the   weapon   which   was   used   in <\/p>\n
    commission of offence.  An omission is recorded in his evidence to the effect that <\/p>\n
    he did not state before police or JMFC Vashi while recording his statements that <\/p>\n
    Accused Nos.2 and 4 informed that they had acquired a gun.  The witness did not <\/p>\n
    inform the police in respect of the conspiracy.\n<\/p>\n
    11              PW No.4 is Arvind Eknath Dalvi, who was at the relevant time in the <\/p>\n
    service of BSS company as a security guard.  This witness was declared hostile by <\/p>\n
    the   prosecution.   Statement   of   this   witness   under   Section   164   of   the   Criminal <\/p>\n
    Procedure Code was recorded.\n<\/p>\n
    12              PW No.6 Narayan Nayak, who was serving as a Stewart   in hotel <\/p>\n
    Athithi Bar, Sanpad, deposed before Court that Accused No.2 was also working <\/p>\n
    with   him   as   a   waiter   and   he   was   removed   from   the   service   due   to   his <\/p>\n
    misbehaviour.  The witness was also removed from the services of Hotel Athithi.\n<\/p>\n
    PW No.6 thereafter started working in hotel Mast Bar.  He worked there for about <\/p>\n
    15-20 days and  then left the services. He  thereafter  started  going to Sandeep <\/p>\n
    hotel where he met Santosh the manager of the said hotel. He even met with <\/p>\n
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\n                                            9                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    Accused No.4 Katke who used to come there to drink liquor.   According to this <\/p>\n
    witness,   Accused   No.4   one   day   called   him   near   Soniya   Bar.   He   took   him   to <\/p>\n
    Sandeep Bar and disclosed him that there is one person by name Tambhale  who <\/p>\n
    had removed him from the services and he wanted to cut his hands and legs.\n<\/p>\n
    According to PW No.6, Accused No.2 was present at that time. They consumed <\/p>\n
    liquor.  But PW No.6 refused to accept proposal of Accused No.4 to participate in <\/p>\n
    the plan.  Again after 4-5 days, Accused Nos.4 met him. He took him to a place <\/p>\n
    where  Accused Nos.2  and  3  were  already present.   They  again  had  talks and <\/p>\n
    discussion. Accused No.4 disclosed his intention and plan that he was going to <\/p>\n
    cut the limbs of Tambhale and kill him as they acquired a pistol.  After coming to <\/p>\n
    know of the plan, PW No.6 did  not meet Accused Nos.2 and 4. Later on he came <\/p>\n
    to   know   that   Tambhale   was   murdered.   He   suspected   that   Accused   N0.4   was <\/p>\n
    planning   to   kill   Tambhale   and   he   might   have   killed   him   by   Accused   No.4.\n<\/p>\n
    Statement of this witness under Section 164 of the Criminal Procedure Code was <\/p>\n
    recorded.  In his cross examination this witness deposed that he did not disclose <\/p>\n
    the discussion and plan to his master as he did not feel it necessary to tell this fact <\/p>\n
    to his master.  The witness could not give  the exact date and place where he met <\/p>\n
    Accused No.4.\n<\/p>\n
    13              P.W.No.9   was   also   examined   by   the   prosecution   to   establish   the <\/p>\n
    charge of conspiracy.  The counsel appearing for the Accused submitted that the <\/p>\n
    trial Court has not believed the evidence of PW No.9.  PW No.9 was residing in <\/p>\n
    Sector 15, Navjivan Society Airoli Navi Mumbai.  There are material omissions in <\/p>\n
    the evidence of this witness in respect of the statements recorded by the police <\/p>\n
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\n                                      10              Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    and JMFC on the subject of Accused Nos.1 and 4 planning to murder Tambhale.\n<\/p>\n
    14            PW No.5  Rajendra Mahadappa Tikekar – Police Constable, who was <\/p>\n
    working in the office of ACP, Crime Vashi Navi Mumbai deposed before Court that <\/p>\n
    while he was sitting in the office he saw through his window one person running <\/p>\n
    away from the gate of market. He identified the said person as Accused No.2 in <\/p>\n
    the Court. This witness identified the accused in Central Prison Thane in Test <\/p>\n
    Identification Parade. This witness informed on telephone APMC Police Station <\/p>\n
    but he did not go to lodge complaint. It is true that his statement was recorded <\/p>\n
    after 10 days of the incident.\n<\/p>\n
    15            PW No.7 is Manji Valji Bhanushali.  He was engaged in the business <\/p>\n
    of stitching gunny bags in Mafco Market APMC, Vashi. At the relevant time and <\/p>\n
    date he saw one person running away from the road leading to vegetable market <\/p>\n
    from Mafco Market, he was having one revolver in his hand and one watchman of <\/p>\n
    APMC was chasing him and trying to catch hold of him.  This witness identified <\/p>\n
    Accused No.2 to be the same person who was running armed with a revolver.  He <\/p>\n
    identified Accused No.2 in Central Prison Thane.\n<\/p>\n
    16            PW No.8 is Dr.Bhushan Vilasrao Jain, who conducted autopsy of the <\/p>\n
    corpse.  The doctor noticed following injuries on the person of deceased :-\n<\/p>\n
                 1             Firearm wound of  entry over Rt. Forehead 3 <\/p>\n
                 cm about lateral 1\/3 of Rt. Eye brow and 6 cm lateral to <\/p>\n
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\n                                          11                   Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
                  midline   of   size   0.8   cm,   in   diameter   with   0.2   cm   circular <\/p>\n
                  aberaded coller margins inverted. No evidence of tattooing <\/p>\n
                  blackening, signing.\n<\/p>\n
                  2       Firearm wound of exist over Rt. occipital region 9 cm <\/p>\n
                  from rt. mastoid and 5 cm. lateral to midline of size 1.2 cm <\/p>\n
                  everted margins, active bleeding, brain tissue pointing out.\n<\/p>\n
                  No evidence of Ad-coller singing, blackening, tattooing.\n<\/p>\n
                          Brack – skin, subcutaneous tissue, periosteum outer <\/p>\n
                  and inner table of skull inverted inside the skull cavity, dure <\/p>\n
                  and   arachnoid   matter,   right   frontal   lobe   of   brain   passing <\/p>\n
                  posteriorly   in   saggital   plane-occipital   lobe   of   brain, <\/p>\n
                  arachnoid and dura matter, inner and outer table of skull <\/p>\n
                  bone   everted   towards   the   scalp   and   scalp.     Blood   tissue <\/p>\n
                  around the track shows evidence of blood infiltration.\n<\/p>\n
    All injuries were ante mortem, according to the doctor.  The cause of death was <\/p>\n
    shock   and   haemorrhage   due   to   fire   arm   injuries.     Accordingly   the   doctor <\/p>\n
    prepared PM Notes (Exhibit 31).  The doctor deposed before court that the death <\/p>\n
    of deceased is possible by a weapon like Article No.11 which was shown to the <\/p>\n
    doctor in Court.\n<\/p>\n
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\n                                          12                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    17             PW No.10 is Ramesh Namdeo Malusare acted as a pancha.  When <\/p>\n
    the police raided the premises of Accused Nos. 2 and 3, they recovered certain <\/p>\n
    news papers concerning APMC and two bags.   They seized one revolver Article <\/p>\n
    11 and two empty and two live cartridges Article 12.  All the articles were sealed <\/p>\n
    in presence of pancha. This witness proved the contents of Panchanama (Exhibit <\/p>\n
    38).\n<\/p>\n
    18             PW No.11 is   Bhaskar Bhaban Khute who was in service of APMC <\/p>\n
    since   2002   as   a   Deputy   Secretary.     He   supported   the   prosecution   case.   He <\/p>\n
    identified Accused Nos.1 and 4 before Court.\n<\/p>\n
    19             P.W.No.12 is Ramesh Babu Rao.   He acted as pancha in respect of <\/p>\n
    discovery   panchanama   regarding   clothes   of   Accused   No.2   were   seized   under <\/p>\n
    panchanama. The Panchanama (Exhibit 41) is accordingly proved.\n<\/p>\n
    20             PW No.13 Deelip Rangrao Nalwade is the Investigating Officer. He <\/p>\n
    was at the relevant time having Additional charge of APMC Police Station Vashi <\/p>\n
    Navi Mumbai.   He recorded FIR given by Santosh Kamble (Exhibit 13).   This <\/p>\n
    witness deposed before court that he conducted spot panchanama (Exhibit 94).\n<\/p>\n
    While conducting the spot panchanama he seized one empty cartridge and one <\/p>\n
    lead shot bullet and one nokia mobile cell phone from the spot where the dead <\/p>\n
    body was lying. He also conducted spot panchanama where Accused No.2 had <\/p>\n
    fired   at   the   complainant.   He   seized   one   empty   cartridge   fired   against   the <\/p>\n
    complainant. He  sealed  them and  sent  them  to  ballistics expert.    Accordingly <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 17:27:42 :::<\/span>
\n                                            13                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    panchanama was drawn.\n<\/p>\n
    21              PW 14 is Ashok Vankatroa Gaikwad, Senior PI, who narrated detail <\/p>\n
    progress of the investigation, the documents relating to suspension of Accused <\/p>\n
    No.4,   various   documents   from   the   office   record   of   APMC   including   copy   of <\/p>\n
    minutes of meeting.   He has proved statements recorded under Section 164 of <\/p>\n
    the Criminal Procedure Code. He had also proved CA   reports (Exhibits 71 and <\/p>\n
    72) and ballistics reports (Exhibits 75 to 76) .  The defence had cross examined <\/p>\n
    this witness accordingly.\n<\/p>\n
    22              Mr.Niranjan Mundargi, the learned counsel appearing for Original <\/p>\n
    Accused No.2 submitted that Accused No.2 is falsely implicated in this crime. He <\/p>\n
    was   not   the   assailant   neither   he   had   used   fire   arm   to   shoot   at   deceased <\/p>\n
    Tambhale.  He had no enmity with deceased Tambhale.  Neither there was any <\/p>\n
    motive to kill deceased. The prosecution has failed to establish any connectivity <\/p>\n
    between the offence and Accused No.2.  The learned counsel submitted that the <\/p>\n
    description of the assailant as given by the prosecution witnesses does not match <\/p>\n
    with the actual appearance of Accused No.2.   The colour of the shirt also does <\/p>\n
    not   match   as   described   by   the   witnesses.     According   to   the   witnesses,   the <\/p>\n
    assailant, after firing, ran away, this itself demonstrate that there was no chance <\/p>\n
    of   PW   No.1,   or   PW   Nos.   5   and   7   to   see   and   identify   Accused   No.2.     The <\/p>\n
    identification   parades   held   do   not   inspire   confidence   as   persons   having   dark <\/p>\n
    complexion   were   standing   in   the   identification   parades   which   helped   the <\/p>\n
    prosecution   witnesses   to   identify   Accused   No.2   as   he   is   a   person   of   fair <\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 17:27:42 :::<\/span>
\n                                           14                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    complexion.   On the issue of conspiracy the learned counsel for Accused No.2 <\/p>\n
    submitted that the evidence of witnesses i.e. PW Nos. 4 and 9 is not supporting <\/p>\n
    the prosecution case.  The prosecution ought to have provided required details in <\/p>\n
    respect of the conspiracy allegedly hatched by Accused No.2 along with other <\/p>\n
    accused persons.   In absence thereof the charge of conspiracy shall fail against <\/p>\n
    accused persons. While commenting upon Test Identification Parades, the learned <\/p>\n
    counsel submitted that the person who was acted as panch in respect of recovery <\/p>\n
    under Section 27 was utilized for the purpose of Test Identification Parade.  The <\/p>\n
    prosecution   failed   to   take   required   precaution   in   this   case.   Lastly   it   was <\/p>\n
    submitted   by the  learned   counsel  for   Accused   No.2  that for   want  of  sanction <\/p>\n
    under Section 39 of the Arms Act, the charge under Arms Acts shall also fail.\n<\/p>\n
    23              Mr.P D Pise, the learned counsel appearing for Original Accused No.<\/p>\n
    4 submitted that the PW No.4 turned hostile and PW No.9 was disbelieved by the <\/p>\n
    trial Court. The prosecution has failed to establish charge of conspiracy against <\/p>\n
    Accused No.4.  He submitted that Accused No.4 was never suspended, therefore, <\/p>\n
    there was no motive for Accused No.4 to cause any bodily harm to deceased <\/p>\n
    Tambhale.  He submitted that PW No.2 has criminal background, therefore, the <\/p>\n
    police utilized his services.  The learned counsel for Accused No.4 submitted that <\/p>\n
    the prosecution has failed to prove that Accused No.4 was really suspended from <\/p>\n
    the   service   of   APMC   and,   therefore,   there   was   no   intention   on   the   part   of <\/p>\n
    Accused   No.4  to   commit crime  neither  there   was any  reason  to  commit such <\/p>\n
    serious offence.  He submitted that there was no proof of conspiracy.  According <\/p>\n
    to the learned counsel, the prosecution ought to have led evidence in respect of <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 17:27:42 :::<\/span>
\n                                           15                 Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    details of accused persons hatching conspiracy which is lacking in this case.\n<\/p>\n
    24              Mr.Shekhar   A   Ingawale,   the   learned   counsel   appearing   for   the <\/p>\n
    acquitted Accused No.1, submitted that the trial Court has properly appreciated <\/p>\n
    the   evidence   and   acquitted   Accused   No.1.     Accused   No.1   had   not   taken   any <\/p>\n
    active part in commission of offence. The learned counsel  submitted that there <\/p>\n
    was   delay   in   recording   statements   of   material   witnesses,   therefore,   the <\/p>\n
    prosecution case cannot be believed against Accused No.1.   He submitted that <\/p>\n
    Accused No.1 had no personal enmity with deceased Tambhale.    He submitted <\/p>\n
    that there was no reason for Accused No.1 to help Accused No.4 in conspiracy to <\/p>\n
    kill Tambhale.   He submitted that PW Nos. 2 and 9 have criminal background, <\/p>\n
    therefore,   their   evidence   is   required   to   be   scrutinized   with   great   care   and <\/p>\n
    caution.     He   lastly   submitted   that   in   the   light   of   material   omissions   and <\/p>\n
    contradictions occurring in the prosecution case, the view adopted by the trial <\/p>\n
    Court in acquitting Accused No.1 is a possible view and, therefore the order of <\/p>\n
    acquittal of the trial court is required to be confirmed by this Court.\n<\/p>\n
    25              Ms Gajare, the learned APP appearing for the State submitted that <\/p>\n
    the   prosecution   had   investigated   this   case   promptly   and   had   led   credible <\/p>\n
    evidence against the accused persons on the issue of conspiracy.  The prosecution <\/p>\n
    witness Nos.2 and 6 are most reliable witnesses. On the issue of actual assault, <\/p>\n
    the   learned   APP   placed   reliance   on   the   evidence   of   PW   Nos.1   and   5.     He <\/p>\n
    submitted   that   the   evidence   of   these   witnesses   is   not   shaken.   They   are <\/p>\n
    independent witnesses. They have no grudge against the accused persons. Their <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 17:27:42 :::<\/span>
\n                                             16                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    presence   at   the   scene   of   offence   was   natural.   She   submitted   that   there   is <\/p>\n
    sufficient   material   on   record   to   show   that   Accused   No.4   Sunil   Katke   was <\/p>\n
    suspended   from   the   service   of   APMC   for   his   misbehaviour,   and   therefore,   he <\/p>\n
    conspired   with   other   accused   to   eliminate   the   secretary   of   APMC   deceased <\/p>\n
    Tambhale.  The learned APP submitted that the evidence of PW 6 is sufficient to <\/p>\n
    show that Accused Nos.2, 3 and 4 conspired to kill Tambhale.  Statement under <\/p>\n
    Section 164 of the Criminal Procedure Code  of this witness   was also recorded.\n<\/p>\n
    Though PW No.6 did not refer to the role of Accused No.3, according to learned <\/p>\n
    APP,  Accused No.3 was present in the meeting.  The learned APP submitted that <\/p>\n
    this is a serious case where an employee enters into conspiracy to successfully <\/p>\n
    eliminate responsible office bearer of APMC.  The facts of the case are shocking <\/p>\n
    in nature and reveals criminal tendency on the part of the main Accused No.4 to <\/p>\n
    conspire and eliminate the secretary of APMC deceased Tambhale.  According to <\/p>\n
    the   learned  APP,   this  not   a   case  where   mercy   or   slightest   leniency   should   be <\/p>\n
    shown  to   the   accused  persons.    The   learned   APP  ultimately   pleaded   that  the <\/p>\n
    order   of   acquittal   passed   by   the   trial   Court   requires   to   be   reversed   and   the <\/p>\n
    acquitted accused be convicted accordingly.\n<\/p>\n
    26              We   have  perused   the   material   placed  on  record.    We   have   gone <\/p>\n
    through the evidence produced on record and considered the submissions of the <\/p>\n
    learned counsel for the parties.\n<\/p>\n
    27              The principle governing offence of conspiracy under Section 120B <\/p>\n
    of the Indian Penal Corder is required to be first considered in the fact of the <\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 17:27:42 :::<\/span>
\n                                           17                   Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    present case. For that purpose we refer to observations of the Apex Court in Para <\/p>\n
    342 in the case of  Ram Narayan Popli v\/s. CBI reported in (2003) 3 SCC 641.\n<\/p>\n
                            “The   elements   of   a   criminal   conspiracy   have   been
\n                   stated to be : (a) an object to be accomplished, (b) a plan or
\n                   scheme embodying means to accomplish that object, (c) an
\n                   agreement or understanding between two or more of the <\/p>\n
                   accused persons whereby, they become definitely committed
\n                   to cooperate for the accomplishment of the object by the
\n                   means   embodied   in   the   agreement,   or   by   any   effectual
\n                   means,   and   (d)   in   the   jurisdiction   where   the   statute
\n                   required, an overt act. The essence of a criminal conspiracy <\/p>\n
                   is the unlawful  combination and ordinarily the offence  is
\n                   complete   when   the   combination   is   framed.   Law   making <\/p>\n
                   conspiracy a crime is designed to curb immoderate power to
\n                   do mischief which is gained by a combination of the means.
\n                   The encouragement and support which co-conspirators give
\n                   to one another rendering enterprises possible which, if left <\/p>\n
                   to   individual   effort,   would   have   been   impossible,   furnish
\n                   the   ground   for   visiting   conspirators   and   abettors   with
\n                   condign punishment.\n<\/p><\/blockquote>\n
                           For an offence punishable under Section 120-B, the
\n                   prosecution need not necessarily prove that the perpetrators <\/p>\n
                   expressly agree to do or cause to be done illegal act; the
\n                   agreement may be proved by necessary implication. Offence
\n                   of criminal conspiracy has its foundation in an agreement to
\n                   commit an offence. A conspiracy consists not merely in the
\n                   intention of two or more, but in the agreement of two or <\/p>\n
                   more to do an unlawful act by unlawful means. So long as
\n                   such   a   design   rests  in  intention   only,   it   is  not   indictable.
\n                   When two agree to carry it into effect, the very plot is an act
\n                   in itself, and an act of each of the parties, promise against
\n                   promise, actus contra actum, capable of being enforced, if <\/p>\n
                   lawful,   punishable   if   for   a   criminal   object   or   for   use   of
\n                   criminal means.\n<\/p><\/blockquote>\n
    28             The prosecution has examined PW Nos.2, 4, 6 and 9 on the issue of <\/p>\n
    conspiracy.     It   has   come   on   record   that   PW   No.4   has   not   supported   the <\/p>\n
    prosecution and   PW No.9 was not believed by the trial Court on the issue of <\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 17:27:43 :::<\/span>
\n                                             18                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    conspiracy. The prosecution therefore relied upon the evidence of PW Nos. 2 and <\/p>\n
    6.   PW   No.2   had   come   out   with   minute   details   as   to   how   at   the   instance   of <\/p>\n
    Accused   No.4   meetings   were   arranged   and   Accused   No.4   with   help   of   other <\/p>\n
    accused persons planned to commit murder of then secretary of APMC Tambhale, <\/p>\n
    they have identified Accused Nos.2 and 4 and have also narrated details and <\/p>\n
    discussion which took place amongst themselves. No sooner they come to know <\/p>\n
    about the serious design lurking in the mind of Accused Nos.2 and 4, they de-\n<\/p>\n
    associated themselves from attending the meetings wherein Accused Nos.2 and 4 <\/p>\n
    were present. PW No.6 had referred to the presence of Accused No.3 but he did <\/p>\n
    not   refer   that   Accused   No.3   had   taken   any   active   part   in   the   process   of <\/p>\n
    conspiracy or designing the plan to commit murder of Tambhale.   The defence <\/p>\n
    has failed to establish that the evidence of PW Nos.2 and 6 is not credit worthy.\n<\/p>\n
    From the evidence on record we find that PW Nos.2 and 6 are natural witnesses.\n<\/p>\n
    They had no reason to falsely implicate Accused Nos.2 and 4. Their versions are <\/p>\n
    not exaggerating. No sooner they came to know that Accused No.4 is hatching <\/p>\n
    conspiracy,   they   have   detached   themselves   and   decided   not   to   associate   with <\/p>\n
    Accused. They are parties to the discussion that Accused No.4 was suspended <\/p>\n
    from services and deceased Tambhale was responsible for the same. From their <\/p>\n
    evidence it is established that a revolver was procured and Accused No.2 was to <\/p>\n
    execute   the   plan   and   commit   murder   of   Tambhale.     The   statements   of   the <\/p>\n
    witnesses were  recorded  under  Sections 164  of the Criminal Procedure Code.\n<\/p>\n
    Though the Defence tried to point out  certain infirmities in the evidence of the <\/p>\n
    material witnesses, but the same do not affect the truthfulness and reliabilities  of <\/p>\n
    these witnesses.\n<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 17:27:43 :::<\/span>
\n                                           19                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    29              On the issue of actual assault, the prosecution has placed reliance <\/p>\n
    on the evidence of PW Nos.1, 5 and 7.   PW No.1 was a person who was very <\/p>\n
    close to deceased Tambhale.  When he was entering in the premises, no sooner <\/p>\n
    he heard sound of firing, he turned back and saw Tambhale fell down on the <\/p>\n
    ground in pool of blood and the assailant was running away.  He started chasing <\/p>\n
    him. When the assailant saw him, he fired two shots at him.  It is but natural that <\/p>\n
    to save his life, PW No.1 stopped chasing   and rushed back to his master-the <\/p>\n
    secretary who was thereafter taken to hospital where he was declared dead.  His <\/p>\n
    evidence   is   natural.   He   is   independent   witness.   He   has   no   grudge   or   enmity <\/p>\n
    against   Accused   Nos.2   and   4.   He   identified   the   accused   No.2   in   Test <\/p>\n
    Identification Parade. We do not find any difficulty in accepting the evidence of <\/p>\n
    PW No.1.\n<\/p>\n
                    PW   No.5   Tikekar,   working   in   the   office   of   ACP,   had   seen   the <\/p>\n
    assailant after he had assaulted deceased Tambhale. He also identified Accused <\/p>\n
    No.2 in Test Identification Parade.\n<\/p>\n
                    PW   No.7   Bhanushali   is   the   person   who   saw   Accused   No.2   with <\/p>\n
    revolver in his hand and saw that one watchman of APMC was chasing him.  He <\/p>\n
    identified   Accused   No.2   in   Test   Identification   Parade.     His   presence   was   also <\/p>\n
    natural as he was doing his business of stitching gunny bags in Mafco Market <\/p>\n
    APMC, Vashi.\n<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 17:27:43 :::<\/span>
\n                                           20                  Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
                    The  submission  of  the  learned  counsel   for  the  Accused  that Test <\/p>\n
    Identification Parade could not be held to be trustworthy, cannot be accepted in <\/p>\n
    the light of the evidence brought on record.   The prosecution has led reliable <\/p>\n
    evidence to show that Accused No.2 had fired at Tambhale.  Tambhale received <\/p>\n
    bullet injury due to which he died.  Accused No.2 even fired at PW No.1 when he <\/p>\n
    tried   to  catch   hold   of   him.    The   act of  Accused   No.2   is  a  part  of   conspiracy <\/p>\n
    hatched  which is clearly established by the  prosecution from the evidence  on <\/p>\n
    record.     The   reports   of   the   Chemical   Analyzer   and   Ballistics   Expert   have <\/p>\n
    corroborated the prosecution case against Accused No.2.  The clothes of Accused <\/p>\n
    No.2 had blood stains.  A pistol was seized from him.\n<\/p>\n
    30              Considering   the   evidence   on   record,   documents   collected   from <\/p>\n
    APMC Office, it is amply proved by the prosecution that Accused No.4 had a <\/p>\n
    reason to have serious grudge against Tambhale.   It is not necessary to go in <\/p>\n
    minute details as to whether order of suspension was served on Accused No.4 by <\/p>\n
    APMC office.  Documents on record amply suggests that the conduct of Accused <\/p>\n
    No.4 was found to be objectionable. The proceedings against him were initiated <\/p>\n
    by the APMC.\n<\/p>\n
    31              From the evidence on record, we do not find that acquitted Accused <\/p>\n
    No.1 Paresh Bhanushali and Accused No.3 Vindo Sahu had actually participated <\/p>\n
    in conspiracy to commit murder of Tambhale. Even if they were present in one or <\/p>\n
    two meetings, it can not be inferred from the facts and circumstances of the case <\/p>\n
    that they can be held guilty for the charge of conspiracy to commit murder of <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 17:27:43 :::<\/span>
\n                                            21                    Appeal Nos.422\/04, 15\/04 & 207\/04<\/span><\/p>\n
    Tambhale.   The reasons given by the trial Court in acquitting Accused Nos.1 and <\/p>\n
    3 seem to be reasonable and the view taken by the trial court is a possible view in <\/p>\n
    recording the order of acquitting in respect of Accused Nos.1 and 3.\n<\/p>\n
    32              We   find   that   the   trial   Court   had   reasonably   appreciated   the <\/p>\n
    evidence   placed   on   record   and   had   awarded   conviction   and   sentence   against <\/p>\n
    Accused Nos.2 and 4. An order of grant of sanction was passed in view of the <\/p>\n
    provisions   of   Section   39   of   the   Arms   Act.     In   the   light   of   the   facts   and <\/p>\n
    circumstances of the case and the evidence brought on record we do not find that <\/p>\n
    there is any infirmity or error in the judgment and order of conviction passed <\/p>\n
    against Accused Nos.2 and 4. We confirm the order of conviction against Accused <\/p>\n
    Nos.2 and 4.\n<\/p>\n
                    Criminal   Appeal   No.422   of   2004   filed   by   Original   Accused   No.2 <\/p>\n
    Manjuviranna Kantayya Rai and Criminal Appeal No.15 of 2004 filed by Original <\/p>\n
    Accused No.4 Sunil Motiram Katke are dismissed.   Criminal Appeal No.207 of <\/p>\n
    2004 filed by the State against order of acquittal in respect of Original Accused <\/p>\n
    No.1 Paresh Bhanjibhai Nanda @ Bhanushali and Original Accused No.3 Vinod @ <\/p>\n
    Ajay Narsingh Sahu stands dismissed.\n<\/p>\n
    (MRS.MRIDULA R BHATKAR J.)                                         (NARESH H PATIL, J.)\n\n\n\n\n                                                                      ::: Downloaded on - 09\/06\/2013 17:27:43 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Manjuviranna Kantayya Rai vs The State Of Maharashtra on 7 July, 2011 Bench: Naresh H. Patil, Mridula Bhatkar 1 Appeal Nos.422\/04, 15\/04 & 207\/04 lgc 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-79923","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nManjuviranna Kantayya Rai vs The State Of Maharashtra on 7 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manjuviranna-kantayya-rai-vs-the-state-of-maharashtra-on-7-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manjuviranna Kantayya Rai vs The State Of Maharashtra on 7 July, 2011 - 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