Matka Operator Suresh Bhagat Murder Case

Transcription

Received on Registered on Decided on Duration : 03/10/2008
: 24/04/2009
: 31/07/2013
: 04Y, 09M, 28D
IN THE COURT OF SESSIONS FOR GREATER BOMBAY,
AT FORT
(Presided over by S.G.Shete, C.R.No.07)
SESSIONS CASE NO.294 OF 2009
(OLD M.C.O.C. CASE NO.14 OF 2008)
Exh.901
The State of Maharashtra
...Complainant
(through Assistant Commissioner
of Police, Detection Crime Branch
Crime Investigation Department, Unit – I, Mumbai, C.R.No.116/2008
of DCBCID in C.R.No.25/2008 of Poynad Police Station)
Versus 1. Pravin Dayanand Shetty
Age 35 years, Occ. Driver,
R/o.Borsapada, Indiranagar,
Kandivali (W), Mumbai.
...Accused
And
Original resident of Anandnagar,
Kariyakal, Taluka Karkla,
District Udipi, Karnataka
...2/
S.C.No.294/09
...2... State V/s. Pravin D. Shetty & 7 Ors.
Judg. contd.Exh. 901
2.Ajimuddin Maulasab Shaikh
Age 39 years, Occ. Mason
R/o. Hanuman Chawl, Dindayal Nagar, Upadhyay Nagar, M.I.D.C., Andheri (W),
Mumbai.
(Accused/Approver)
And
Original resident of Hangraga,
Taluka Aurad, District Bidar,
Karnataka.
3. Harish Rama Mandvikar
Age 33 years, Occ. Electrician
R/o. Bharti Chawl, Room No.42,
1/9, Indira Nagar, Borsapada,
Kandivali (W), Mumbai 400 067.
...Accused
4.Suhas Mahadev Roge
Age 42 years, Occ. Hotel Business,
R/o.3/B, Dadyseth Wadi, Siri Road,
Band Stand, Girgaon Chowpati,
Malbar Hill, Mumbai 400 006.
...Accused
5.Kiran Baban Amle
Age 36 years, Occ. Cable Business
R/o. Room no.1, Bhaskar Kolekar
Chawl, Navagaon, Laxman Mhatre
Road, Dahisar (W), Mumbai 400 068.
...Accused
...3/
S.C.No.294/09
6. Kiran Ragu Pujari
Age 30 years, Occ. Nil,
R/o.41/4, Shree Ganesh Krupa,
Powai Chowk, Mulund Colony,
Mulund (W), Mumbai 400 080.
(Accused/Approver)
7.Jaya Talakshi Chheda
Age 49 years, Occ. Nil
R/o. 126, Room No.3518, Pantnagar Vishal Housing Society, Ghatkopar
(E), Mumbai.
...Accused
8. Hitesh Suresh Bhagat
Age 33 years, Occ. Share Trading,
R/o. 212, Jayant Villa, 4th floor,
Opp. Worli Market, Worli,
Mumbai 400 018.
...Accused
CHARGE : U/s.120B, 302 r/w. 34 of I.P.C.
Ms. Kalpana Chavan, Spl.P.P. for the State.
Shri Avinash Rasal, Advocate for accused no.1.
Shri Vilas Naik, Advocate for accused no.3
Shri Adhik Shirodkar, Senior Advocate with Shri Archit Sakhalkar, Advocate for accused no.4.
Shri Amit Munde, Advocate for accused no.5
Shri Sudeep Pasbola, Counsel with Shri Ram Pawde, Advocate for the accused no.7.
Shri Taraq Sayyed, Advocate for accused no.8
...4/
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J U D G M E N T
(Delivered on 31st July, 2013)
The accused are charged for the commission of the offences punishable u/s.120B, 302 r/w. 34 of Indian Penal Code (IPC), for hatching criminal conspiracy to kill one Suresh Bhagat and committing his murder and six others with their common intention.
2.
Prosecution case is thus :
Deceased Suresh Bhagat was running Mataka business. Accused no.7 Jaya Suresh Bhagatmaiden name Jaya Talakshi Chhedais his divorcee. Accused no.8 Hitesh Bhagat is their son. Accused no.4 Suhas Roge was previously serving as his bodyguard and is said to be a paramour of accused no.7 Jaya Chheda. It is alleged that accused no.4 Suhas Roge and accused no.7 Jaya Chheda were also running mataka business. Accused nos.4, 7 and 8 were intending to rein Mataka business of Suresh Bhagat. Accused no.2 Ajimuddin Maulasab Shaikh, who turned to be approver, was the owner of truck no.MH04CA4445. Accused no.1 Pravin Shetty, who was the driver of the said truck, gave dash to Scorpio bearing no.MH
01AC2475, in which deceased Suresh Bhagat and others were sitting. Accused no.3 Harish Mandvikar was an electrician and pretending himself as a “Bhai” as well as social worker and thereby, ...5/
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formed a “Dahi Handi Mandal”. He was knowing approver Ajimuddin Shaikh as previously they were colleague with 'M/s. Jai Electricals'. He also used to give his truck for dahi handi as well as for Ganpati festival. They were knowing each other for more than 10 years. Accused no.5 Kiran Amle is also a member of “Dahi Handi Mandal” as well as coaccused with accused no.3 Harish Mandvikar in other criminal cases. They were the members of the “Cricket Club”. Accused no.3 Harish, accused no.5 Kiran Amle and approver Ajimuddin are the resident of Borsapada, Kandivali. Accused no.6 Kiran Pujari, who turned to be approver, is a so called social worker, police informer and having contacts with police, government officials and even with the Ministers. 3.
Special case bearing no.02/2008 under N.D.P.S. Act was pending against deceased Suresh Bhagat, his son Hitesh Bhagat & others in Sessions Court, Alibaug. On 15/5/2008, it was adjourned to 13/6/2008. Accused no.4 Suhas Roge, accused no.7 Jaya Chheda and accused no.8 Hitesh Bhagat hatched the conspiracy to kill the deceased Suresh Bhagat to rein his mataka business with the help of accused no.6 Kiran Pujari, who agreed to cooperate with political influence as well as influence with police for valuable consideration. Thereby, accused no.3 Harish Mandvikar took the contract (Supari) ...6/
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with them to eliminate Suresh Bhagat, for an amount of Rs.70 lakhs, while returning from Alibaug Court. As a part of the conspiracy, accused Hitesh chose to remain absent in Alibaug Court on both the dates. Approver Ajimuddin agreed with Harish Mandvikar to give the truck for a consideration of Rs.10 lakhs. Accused no.1 driver Pravin Shetty agreed with Harish Mandvikar to ply the truck and to eliminate the deceased Suresh Bhagat by giving dash to his vehicle while returning from Alibaug Court for an amount of Rs.3 lakhs. Accused no.5 also joined the hands with accused Harish Mandvikar for the commission of crime for valuable consideration. 4.
In fact, the conspiracy was hatched to kill Suresh Bhagat on 15/5/2008 i.e. the previous date in Alibaug Court, but, the same did not materialise. On the day of the incident i.e. on 13/6/2008, Suresh Bhagat, his nephew Tushar Shah, his bodyguards Dharmendra Singh and Milind Namdeo Kadam, Advocate Kamlesh Bhagwan Salunkhe, servant Valmiki Sitaram Pawar and one Kamlesh Ashok Kamble went to Alibaug by Scorpio jeep bearing no.MH01AC2475 for attending the court. While returning by AlibaugPen Road, at about 1.15 p.m., accused no.1 rammed Scorpio jeep by the truck bearing no.MH04CA4445 with an intention to commit the murder. Resultantly, Suresh Bhagat and five others died ...7/
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on the spot due to heavy impact. One of them by name Kamlesh Kamble also sustained serious injuries, who could not survive though ultimately forwarded to Sion Hospital, Mumbai.
5.
On 13/6/2008, P.W.01 Head Constable J.D. Mokal was on duty between 13:00 hrs. to 20:00 hrs., as a Station House Officer of Poynad police station. At about 13:45 hrs., he received the telephonic message that accident occurred between one truck and Scorpio jeep in front of “Fauji Dhaba” on AlibaugPen Road, within the vicinity of village Shahbaj. Immediately he informed the incident to the Station Incharge, Sr.P.I. Hiremath. Thereby, informant Head Constable Mokal, Sr.P.I. Hiremath and the other staff rushed to the spot of incident. When they reached on the spot, they found that headon collusion between truck and Scorpio jeep had taken place. They noticed that truck was facing towards Pen and its rear side was down side of the road as well as front sides of Scorpio and truck were totally damaged. They found that Scorpio was completely damaged and front side of the truck was damaged. Seven passengers in Scorpio were seriously injured and removed from Scorpio and sent to Civil Hospital, Alibaug. ...8/
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6.
On the local inspection of the spot, P.W.01 J.D. Mokal found that truck was proceeding from Pen to Alibaug whereas Scorpio was proceeding from Alibaug to Pen. He found that truck driver was driving the truck recklessly and without considering the condition of the road. Six passengers from Scorpio jeep had died on the spot and one was severely injured, who died later. Immediately, after the incident, truck driver ran away from the spot. Accordingly, informant Head Constable Janardan Dhaya Mokal went to Poynad police station and lodged the report u/s. 304A, 279, 337, 427, 338 of IPC as well as u/s. 184, 134 of Motor Vehicle Act. On the basis of his report, Station House Officer registered the crime vide C.R.No.I
25/2008.
7.
Being a Sr.P.I., P.W.71 Hiremath carried out the investigation by drawing a spot panchanama. Dead bodies were forwarded to Civil Hospital, Alibaug for post mortem. He obtained the Compact Disk (C.D.) and photographs of the vehicles with the help of photographer Shri Musale and Shri Chavalkar. On 18/6/2008, with the help of mechanic Nakul, he inspected the vehicle and found one pistol, six cartridges and one 'Nike' bag containing the copies of Writ Petition. Accordingly, he drew the seizure panchanama of pistol, chopper and documents in the bag.
...9/
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8.
In the meantime, District Superintendent of Police directed the parallel investigation to Local Crime Branch, Raigad. Accordingly, Sr.P.I. V.K. More also inspected the spot on the same day. During the inspection of vehicles, he found mobile numbers written over the truck and contacted the truck owner Anand Patil as well as approver Ajjimuddin. On telephonic inquiry, he found that approver Ajjimuddin Shaikh and the Anand Patil are the owners of the truck in question. Immediately he rushed to Dahisar, Mumbai. He went to the house of Ajjimuddin Shaikh and interrogated in respect of the driver. During the interrogation, he came to know that accused no.1 Pravin Shetty was the driver. On 14/6/2008, Sr.P.I. More also nabbed the accused no.1 Pravin Shetty and approver Ajjimuddin and brought both of them to Poynad Police Station. 9.
At the time of the arrest, accused no.1 was found in possession of one toll receipt. At the relevant time, he found that accused no.1 Pravin Shetty sustained the injuries on his forehead and nose. During the investigation, he found that it was not an accident, but it is the case of murder. Thereby, on 16/6/2008, I.O. submitted the report to Chief Judicial Magistrate, Alibaug, for addition of charge u/s. 302, 120B of IPC. Accordingly, he arrested accused no.1 driver Pravin Shetty and accused no.2 Ajimuddin ...10/
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Shaikh (approver) and produced them before the Magistrate for police custody. On 16/6/2008, he issued a letter to the concerned mobile service provider company for getting call detail reports.
10.
During the investigation i.e. on 19/6/2008, I.O. arrested accused no.3 Harish Mandvikar and accused no.4 Suhas Roge from Somnath Chowk, Surat. On 19/6/2008, both the accused were produced before the Magistrate, who granted the police custody. During the investigation, accused Harish Mandvikar made voluntary statement and shown willingness to produce the cash received by him as a consideration of the contract to kill Suresh Bhagat, from the house of his friends P.W.39 Arvind Modasia and P.W.77 Anthony Raj Nannya Dravid, residents of Kandivali, Mumbai. Accordingly, they went to the house of Arvind Modasia and Anthony Raj Nannya Dravid. They produced the cash of Rs.23,50,000/ and Rs.8,00,000/ respectively, at the instance of accused Harish Mandvikar and the same was seized under recovery panchanama u/s. 27 of Evidence Act. Thereafter, IO recorded the statements of Arvind Modasia and Anthony Raj Nannya Dravid. On 21/6/2008, I.O. took search of the house of the accused no.7 Jaya Chheda in the presence of accused Suhas Roge as well as search of house of accused no.4 Suhas Roge. During the search of house of accused Suhas Roge, I.O. seized three mobiles from dickey of 'Activa' Scooter. ...11/
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11.
On 21/6/2008, I.O. arrested accused Kiran Amle. On the next day, he was produced before the Judicial Magistrate First Class, Alibaug, who committed him to the police custody. On 23/6/2008, they went to Daman along with accused Suhas Roge for taking the search of wanted accused Jaya Chheda, but she was not found. On 19/6/2008, he recorded the statement of Vinod Bhagat, who is the brother of the deceased Suresh Bhagat. On 29/6/2008, he recorded the statement of Rakesh Sawant, whose mobile was used by Suhas Roge. On 30/6/2008, he issued a wireless message to all the Commissionarate as well as District Superintendent of Police for causing the arrest of wanted accused Jaya Chheda. 12.
On 1/7/2008, he arrested approver Kiran Pujari. On the same day, he received the communication from the Director General of Police regarding transfer of investigation of C.R.No.25/2008 of Poynad police station to Crime Branch, Mumbai. Accordingly, he submitted his report to Crime Branch, Mumbai and handed over the investigation to I.O. P.I. R.P. Mahale. 13.
Earlier on 12/6/2008, P.I. Mahale had received the complaint lodged by deceased Suresh Bhagat, on 13/3/2008, with the Commissioner of Police, Mumbai, about the threats to his life from ...12/
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Jaya Chheda, Suhas Roge, Hitesh Bhagat and Kiran Pujari in connection with usurping his Mataka business. On 13/6/2008, at about 4.00 p.m., he received the information of the accident. Immediately, he rushed to Poynad police station i.e. on 14/6/2008, at about 2.00 a.m., but none of the police officer of Poynad police station met him. On 1/7/2008, investigation of the crime itself was transferred to DCBCID. On 2/7/2008, I.O. P.I. Mahale arrested the accused Kiran Pujari in this crime under the arrest panchanama. He seized three mobiles from the possession of Kiran Pujari. On 4/7/2008, he arrested the accused Jaya Chheda under the arrest panchanama. He found that provisions of M.C.O.C. Act are applicable to the present case. Therefore, on 6/7/2008, he sent the proposal of M.C.O.C. Act to the superiors. On 8/7/2008, he caused to be arrested the accused Hitesh Bhagat by sending his colleagues to Hotel 'SunNSand' at Goa. During the search of the accused Hitesh Bhagat, I.O. seized three mobiles, wrist watch and cash of Rs.11,39,000/ from his possession. Accordingly, he drew the arrest as well as seizure panchanama. On 9/7/2008, Joint Commissioner of Police (Crime), approved the proposal of M.C.O.C.. Thereafter, on 12/7/2008, investigation was handed over to A.C.P. Duraphe.
...13/
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14.
From 9/7/2008, I.O. P.I. Mahale carried out the further investigation under the supervision of A.C.P. Duraphe. On 12/7/2008, he recorded the statement of Advocate Somet Shirsat. During the investigation, I.O. recorded supplementary statement of Joseph John Madanlal, on 13/7/2008, statement of Anthony Raj Nannya Dravid, on 14/7/2008, statement of Vinod Naik on 5/8/2008, statement of Ganesh Rane on 7/8/2008, statements of Vinayak Pawar and Mohd. Kashif Abdul Majid on 13/8/2008 and 16/8/2008 respectively, statement of Ritesh Mehta on 27/8/2008, statements of Sitaram Patil, Amit Patil and Abdulla Khan and supplementary statement of Nitin Chavan, on 29/8/2008, statement of witness Rahul Mehta on 3/9/2008, supplementary statement of Rahul Mehta and Ritesh Mehta, on 4/9/2008. He further recorded statement of Nitin Chavan , on 5/9/2008, statement of Deepak Devrukhkar and supplementary statement of Vinod Bhagat, on 8/9/2008 and 12/9/2008 respectively .
15.
On 9/7/2008, I.O. arrested the accused Jaya Chheda, Hitesh Bhagat and Kiran Pujari under M.C.O.C. Act. He produced them before the Special Court on 10/7/2008 for further police custody to carry out the investigation. On 10/7/2008, he rearrested the accused Pravin Shetty, Ajjimuddin Shaikh, Harish Mandvikar, Suhas Roge and Kiran Amle and obtained their police custody. During ...14/
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further investigation, i.e. on 21/7/2008, he issued a letter of request to the learned Chief Metropolitan Magistrate to record the statement u/s. 164 of Code of Criminal Procedure (Cr.P.C.) of the witnesses Somet Shirsat, Joseph Nadar and Joseph Madanlal. On 25/7/2008, he obtained the certified copy of the exemption application dated 13/6/2008, filed on behalf of the accused Hitesh Bhagat in Alibaug Court. During the investigation, he obtained the call detail reports of all the respective mobiles. He also called the record from Hotels i.e. 'ITC Grand', Hyatt, Ramada Plaza and Grand Hyatt, in which the accused Hitesh Bhagat had stayed upto his arrest. On 16/9/2009, he obtained the paper cutting of newspaper 'MidDay'. On 17/9/2008, I.O. A.C.P. Duraphe forwarded the letter to the learned Chief Metropolitan Magistrate for recording the statements of the witnesses u/s. 164 of Code of Criminal Procedure. On 30/9/2008, he also obtained the papers from Hotel 'J.W. Marriate' where the accused Hitesh Bhagat had stayed. After completion of investigation, i.e. on 3/10/2008, I.O. A.C.P. Duraphe filed the chargesheet before the Special Court.
16.
Even after filing of chargesheet, I.O. issued a letter to the Chief Government Pleader and obtained the certified copies of the Writ Petition No.1013/2008 as well as the copy of the affidavit of Jaya ...15/
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Bhagat in respect of Writ Petition No.2486/2005. Thereafter, he recorded the statement of Sanjay Shirke and Joseph Rodrigues. On 9/11/2009, he forwarded witnesses Joseph Rodrigues before the learned Metropolitan Magistrate, 28th Court, for recording his statement u/s. 164 of Code of Criminal Procedure. He also obtained the copy of the application form of prepaid mobile of accused Harish Mandvikar (X63).
17.
During the pendency of trial, accused no.4 Suhas Roge filed an application (Exh.26) to discharge him from the provisions of M.C.O.C.Act. After giving opportunities to both the parties, accused are discharged by the learned Special Judge for the offence punishable u/s.3(1)(1) of M.C.O.C. Act, by order dated 24/4/2009, with a direction to produce the accused before Sessions Court on 5/5/2009. 18.
The charge (Exh.264) was framed by my learned Predecessor against the accused for the offence punishable u/s. 120
B, 302 r/w. 34 of Indian Penal Code, to which accused pleaded not guilty and claimed to be tried. 19.
During the trial i.e. on 8/8/2011 and on 04/04/2012, accused no.6 Kiran Raghu Pujari and accused no.2 Ajimuddin ...16/
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Maulasahab Shaikh filed applications u/s. 306 of Cr.P.C. (Exh.316 & Exh.656 respectively), before my Ld. Predecessor, for tender of pardon to the accomplice. They were allowed on the same day. Accordingly, my Ld. Predecessor framed the charge vide Exh.264A & Exh.264B respectively against remaining accused, which was read over and explained to accused in vernacular, to which accused pleaded not guilty and claimed to be tried. Their defence is of total denial and of false implication.
20.
Considering the facts, the evidence and the material on record, following points arise for my determination. My findings thereon are as under for the reasons discussed below:
POINTS
FINDINGS
1. Whether the death of the deceased Suresh Bhagat and others is accidental or homicidal ?
Homicidal
2. Whether prosecution has proved that on or before 13/6/2008, at Mumbai, accused hatched conspiracy with approver Ajimuddin Shaikh and approver Kiran Pujari to kill Suresh Bhagat and thereby committed an offence punishable u/s. 120B of Indian Penal Code ?
In the affirmative
3. Whether prosecution has further proved that on 13/6/2008, at about 1.15 p.m., within the vicinity of village Shahabaj, AlibaugPen Road,
In the affirmative
...17/
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the accused, in furtherance of their common intention, intentionally and knowingly caused the death of Suresh Bhagat and six others and thereby committed an offence punishable u/s. 302 r/w. 34 of Indian Penal Code?
4. Whether prosecution further proved that on the same date, time and place, accused no.1, intentionally and knowingly committed the murder of Suresh Bhagat and six others by forcibly dashing his truck no.MH04CA4445 to Scorpio in which Suresh Bhagat and others were traveling and thereby committed an offence punishable u/s. 302 of Indian Penal Code ?
In the affirmative
Accused nos.1,3,4,5,7 & 8 are convicted
5. What order ? REASONS
AS TO POINT NOS.1 TO 4 :
21.
The facts and evidence in this case are such that the discussion on all the points would be intermixing. Therefore, it is necessary to discuss the point under one chapter. It is necessary to mention here that evidence of all eighty (80) witnesses was recorded by my Ld. Predecessors.
...18/
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22.
In support of their case, the prosecution has examined informant/complainant, investigating officers (I.O.), who carried out the investigation and took the help of other police officers. They are informant/complainant Janardan Dhaya Mokal (P.W.01Exh.327), I.O. P.I. G.C. Hiremath (P.W.71Exh.725), I.O. Sr.P.I. Vishnu Kashinath More (P.W.78Exh.759), I.O. P.I. Ramesh P. Mahale (P.W.79Exh.782) and I.O. A.C.P. Ashok Tukaram Duraphe (P.W.80
Exh.809). Other police officers are A.S.I. Manoj Manohar More (P.W.06 – Exh.410), P.I. Dinesh Bhalchandra Joshi (P.W.14
Exh.440), A.P.I.Mohd. Azam Yusuf Patel (P.W.48Exh.583), P.S.I. Sambhaji T. Dhamankar (P.W.50Exh.591), A.P.I. Vinayak D. Gaikwad (P.W.51Exh.603A), P.I. Sheetal Vilasrao Raut (P.W.53
Exh.613), P.I. Keshav Sakharam Shengale (P.W.56Exh.626), A.P.I. Santosh D. Barge (P.W.69Exh.716), P.N. Girish Bhagwan Anerao (P.W.70Exh.719), P.S.I. Baban Zipro Pawar (P.W.73Exh.741), P.I. Pundalik V. Nigade (P.W.74Exh.743) and A.P.I. Rajkumar Dattatray Waghchaure (P.W.76Exh.751).
23.
The prosecution relied on the testimony of approvers Kiran Raghu Pujari (P.W.05Exh.379) and Ajimuddin Maulasab Shaikh (P.W.62 Exh.669). To corroborate the testimony of ...19/
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approvers, prosecution relies on the testimony of Advocate Somet S. Shirsat (P.W.02Exh.357), who is Advocate for accused no.8 Hitesh Bhagat in N.D.P.S. case in Alibaug Court and Advocate Suhas Tukaram Gaikwad (P.W.75Exh.746), who was Advocate of deceased Suresh Bhagat in Writ Petition No.1013/2008 before Hon'ble High Court and who drafted the representation/complaint as per the instructions of deceased Suresh Bhagat and lodged the complaint before the Commissioner of Police, Mumbai. 24.
Prosecution further relies on the testimony of learned Metropolitan Magistrate Shri A.D. Kshirsagar (P.W.72Exh.736), who recorded the statement of witness Joseph John Mandanlal and other witnesses. Dr. Smt. Shashikala K. Desai (P.W.22Exh.470), who examined the accused no.1 driver Pravin Shetty on the day of the incident i.e. on 13/6/2008. R.T.O. Inspector Jayraj P. Thanekar (P.W.23Exh.472), who examined both the vehicles in question. 25.
Prosecution also relies on the testimonies of the relatives of the deceased i.e. Varsha Tushar Shah (P.W.17Exh.456), who is the wife of deceased Tushar Shah, Vinod Kalyanji Bhagat (P.W.32
Exh.511), who is the brother of deceased Suresh Bhagat and Ashok ...20/
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Habu Kamble (P.W.45Exh.576), who is the father of deceased Kamlesh Kamble. 26.
In support of their case, prosecution has also examined the Medical Officers, who carried out the post mortem of the deceased at Civil Hospital, Alibaug and Sion Hospital. They are Dr. Vijaykumar P. Kurade (P.W.33Exh.531), Dr. Shripad M. Kondekar (P.W.34Exh.535), Dr. Sunil Ganpatrao Bhopale (P.W.36Exh.537), Dr.Anil Shivling Phutane (P.W.37Exh.541) and Dr. Revati Ajay Desai (P.W.46Exh.577).
27.
Prosecution relies on the testimonies of the witnesses i.e. Anand Vishram Patil (P.W.07Exh.415), who is the partner of the approver Ajimuddin Shaikh, waiter Daulat Tukaram Bade (P.W.24
Exh.480) and Manager Nitin Tukaram Mhatre (P.W.25Exh.481) of Hotel Sai Kutir, Wadkhal Naka, earlier bodyguard of the accused no.7 Jaya Chheda namely Latish @ Satish N. Shetty (P.W.30
Exh.505), Mr. Vinodkumar Menon (P.W.35Exh.535),City Editor of newspaper 'MidDay', photographers Mahesh Kisan Musale (P.W.49
Exh.586), and Vijay Narayan Chavarkar (P.W.54Exh.618).
...21/
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28.
Prosecution examined the panchas on various panchanamas. They are Shailesh Shivram Patil (P.W.27Exh.491), Nitin Shravan Dhepe (P.W.28Exh.495), Bhalchandra J. Gharat (P.W.29Exh.501), Shivram Vasant Khawanekar (P.W.31Exh.507) and Dhananjay C. Mhatre (P.W.52Exh.608).
29.
Prosecution examined the subscribers on the record of the mobile companies but the mobiles, which were found in possession of the accused. They are Vinayak Dinkar Pawar (P.W.10Exh.428), Mohd. Kashif Abdul Majid (P.W.11Exh.432), Rakesh Sawant (P.W.12Exh.434), Amit Pandurang Patil
(P.W.19Exh.459), Pandurang Patil (P.W.21Exh.464) and Deepak Devrukhar (P.W.26
Exh.488). 30.
To prove the call detail as well as subscriber detail records of the mobiles, prosecution has examined the Nodal Officer of Reliance Company, Rajesh S. Gaikwad (P.W.55Exh.623), Senior Manager, B.P.L. Mobile, Sudhakar Devram Musale (P.W.57
Exh.632), Nodal Officer of Bharati Airtel, Sunil Suhaschandra Tiwari (P.W.60Exh.642), Darshansingh Randhawa, Senior Manager of TATA Tele Services (Old Huges Tele Communication) (P.W.61
...22/
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Exh.651), Nodal Officer of Max Touch (Vodafone) Vikas Narayan Phulkar (P.W.63Exh.681), Assistant Nodal Officer of Airtel Yogesh Rajapurkar (P.W.64Exh.693) and Nodal Officer of Bharati Airtel Chetan Srirang More (P.W.66Exh.698).
31.
To prove the case against accused no.4 Suhas Roge, prosecution has examined witnesses Vinod Madan Naik (P.W.15
Exh.443), Joseph Robert Rodrigues (P.W.16Exh.449) and Sanjay Ramchandra Shirke (P.W.68Exh.711). The prosecution examined Sandeep B. Shirodkar (P.W.59Exh.638), who is the cousin of accused Kiran Amle and resident of Mhapusa, Goa, witness Rahul S. Kurtadkar (P.W.20Exh.463), who is the driver of approver Kiran Pujari.
32.
To prove the conspiracy of accused Harish Mandvikar, prosecution has examined the witness by name Joseph Mangesh Nadar (P.W.08Exh.422), Sales Manager of “Om Cars” Mahesh R. Yadav (P.W.09Exh.424), Joseph John Madanlal (P.W.13Exh.436), Sunil Zilu Jangle (P.W.18Exh.458), Arvind A. Modasia (P.W.39
Exh.548), Ganesh Jagdish Rane (P.W.67Exh.709) and Anthony Raj Nanya Dravid (P.W.77Exh.756).
...23/
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33.
To prove the case against accused Hitesh Bhagat, the prosecution examined his friends. They are Ritesh Pratap Mehta (P.W.03Exh.365), Rahul Rajesh Mehta (P.W.42Exh.564), and Abdulla Amanulla Khan (P.W.43Exh.566).
34.
To support the stay as well as the travel of the accused Hitesh Bhagat, the prosecution has examined the travel agent Nitin Prabhakar Chavan (P.W.04Exh.372), Team Leader of Kuoni Travels Rajendra J. Kamble (P.W.38Exh.545), Manager of Hotel 'Ramada Plaza' Michael Remedios (P.W.40Exh.550), Assistant Manager of Hotel 'Hyatt Regency' Bhushan Madhukar Rane (P.W.41Exh.556), Manager of 'ITC Grand' Satish Madhukar Vaidya (P.W.44Exh.570), Manager of 'Grand Hyatt' Tushar Kishor Mali (P.W.47Exh.581), representative of Hotel 'SunNSand', Goa, Preetam C. Mahadik (P.W.58Exh.636) and Trainee Manager of Hotel 'SunNSand', Goa, Ajay Bensingh Pal (P.W.65Exh.696).
35.
In support of their case, the prosecution relies on the various documents i.e. complaint/First Information Report (Exh.330), format First Information Report (Exh.330A), representation/ complaint of deceased Suresh Bhagat, dated 13/3/2008, about threats to his life (Exh.747), certified copy of Writ ...24/
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Petition No.1013/2008 before Hon'ble High Court (Exh.748), English Article regarding the news given by P.W.35 Vijaykumar Menon, Editor of 'MidDay' (Exh.536) as well as xerox copy of the Gujarathi 'MidDay' (X53A), accident reports form of motor vehicle Scorpio and the truck issued by P.W.23 J.P. Thanekar (Exh.473 and Exh.474).
36.
The prosecution relies on the statements u/s. 164 of Cr.P.C. recorded by the Ld. Metropolitan Magistrates and Ld. Chief Metropolitan Magistrate of the approver and witnesses i.e. statement of P.W.05 Kiran Pujari (Exh.340), statement of P.W.62 Ajimuddin Shaikh (Exh.657A), statement of P.W.13 Joseph John Madanlal (Exh.737), statement of P.W.02 Advocate Somet Shirsat (Exh.359), statement of P.W.03 Ritesh Mehta (Exh.367), statement of P.W.15 Vinod Madan Naik (Exh.444), statement of P.W.16 Joseph Robert Rodrigues (Exh.883).
37.
The prosecution also relies on the statements of the witnesses recorded by the investigating officer i.e. portion marked 'A' and 'B' of Joseph John Madanlal (Exh.752 and 753), portion marked 'A' of statement of Sunil Jangle (Exh.754), portion marked 'A' of ...25/
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memorandum panchanama of accused Harish Mandvikar dated 19/6/2008 (Exh.760), portion marked 'A' of the statement of Arvind Modasia (Exh.768), portion marked 'A' and 'B' of the statement of Rakesh Sawant (Exh.771 and Exh.772), portion marked A to C in the statement of Kiran Pujari (Exh.806 to Exh.808), portion marked 'A' of supplementary statement of Joseph John Madanlal (Exh.790), portion marked A to G of statement of Anthony Raj Nanya Dravid (Exh.791 to Exh.797) and portion marked 'A' and 'B' of statement of Ganesh Rane (Exh.798 and Exh.799) to prove the contradictions.
38.
The prosecution further relies on the inquest panchanama of deceased Kamlesh Salunkhe (Exh.726), inquest panchanama of deceased Valmik Pawar (Exh.727), inquest panchanama of deceased Tushar Shah (Exh.728), inquest panchanama of deceased Suresh Bhagat (Exh.729), inquest panchanama of deceased Milind Namdeo Kadam (Exh.730) and inquest panchanama of deceased Dharmendra Kumar Singh (Exh.731). 39.
The prosecution also relies on the post mortem reports as well as advanced death certificates of deceased Kamlesh Salunkhe (Exh.532 & Exh.532A), deceased Tushar Shah (Exh.534 & ...26/
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Exh.534A), deceased Dharmendra Kumar Singh (Exh.538 & Exh.538A), deceased Milind Namdeo Kadam (Exh.539 & Exh.539
A), deceased Valmik Pawar (Exh.542 & Exh.542A) and deceased Suresh Bhagat (Exh.543 & Exh.543A) as well as post mortem report of Kamlesh Kamble issued by Sion Hospital (Exh.578).
40.
The prosecution relies on the receipt of the photograph bill (Exh.587), 20 photographs of the deceased (Exh.589 colly.), three photographs of the vehicles in question (Exh.610 to Exh.612), Compact Disk (C.D.) and five photographs of both the vehicles (Exh.619 & Exh.620 colly.).
41.
The prosecution relies on the medical papers of the accused Pravin Shetty dated 13/6/2008 of Vibha Care Home (Exh.471) and certified copy of the exemption application of accused no.8 Hitesh Bhagat in N.D.P.S. Special Case No.2/2006 before Sessions Court, Alibaug (Exh.358).
42.
The prosecution relies on the memorandum panchanama of accused Harish Mandvikar and recovery u/s.27 of Evidence Act of Rs.8 lakhs from Anthony Raj Nanya Dravid (Exh.493), arrest panchanama of accused no.1 Pravin Shetty & approver Ajimuddin ...27/
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Shaikh (Exh.496 & Exh.496A), personal search panchanama of accused Kiran Amle and seizure of car bearing no.MH02AP4563, dtd. 21/6/2008 (Exh.508), arrest panchanama of accused no.4 Suhas Roge (Exh.592), arrest panchanama of accused Kiran Amle (Exh.593 colly.), spot panchanama, dtd.13/6/2008, regarding Scorpio & Truck (Exh.609), memorandum and recovery panchanama of Rs.4 lakhs, at the instance of approver Kiran Pujari (Exh.627 & Exh.627
A), memorandum and recovery panchanama of Maruti car bearing no.MH04BS9412, dtd.13/7/2008, at the instance of accused Harish Mandivkar (Exh.628 & Exh.628A), panchanama dtd.13/7/2008 of seizure of two mobiles, SIM card, scribbling papers and itinerary air ticket,etc.from the possession of Panaji Police (Exh.637), panchanama dtd.18/6/2008 in respect of search of vehicle i.e. Scorpio & seizure of one 32 bore pistol,6 rounds & two mobile phones (Exh.733), panchanama dtd.13/6/2008 of seizure of the blue colour Nike bag, chopper and mobile (Exh.734), arrest & personal search panchanama dtd.2/7/2008 of approver Kiran Pujari (Exh.786), arrest & personal search panchanama of accused Jaya Chheda dated 4/7/2008 (Exh.788) and arrest & personal search panchanama of accused Hitesh Bhagat, dtd. 8/7/2008, seizure of cash Rs.11,39,000/, wrist watch and three mobiles (Exh.789).
...28/
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43.
The prosecution further relies on the house search of accused no.1 Pravin Shetty and approver Ajimuddin Shaikh, dated 17/6/2008 (Exh.614), house search panchanama of accused no.1 Pravin Shetty dated 20/6/2008 (Exh.763), seizure panchanama dated 18/6/2008, of papers of Maruti Swift car bearing no.MH02AP4563 (Exh.615), memorandum panchanama of accused Harish Mandvikar and recovery of Rs.23,50,000/ (Exh.760 & Exh.761), house search panchanama and seizure of three mobiles from the house of accused Harish Mandvikar, dated 20/6/2008 (Exh.762), panchanama of house search of accused Jaya Chheda, dated 21/6/2008 (Exh.769), recovery of mobile of accused Harish Mandvikar from Santosh Gupta dated 22/6/2008 (Exh.604), recovery panchanama of mobile of accused Kiran Amle from the house of P.W.59 Sandeep Shirodkar, dated 23/6/2008 (Exh.717), house search of accused Suhas Roge and recovery of three mobiles from the dickey of his Activa which is in front of his house dated 21/6/2008 (Exh.770).
44.
The prosecution relies on the call detail reports as well as the correspondence between the investigating officer and respective mobile companies. They relied on the letter issued by Reliance Communication to the Deputy Commissioner of Police in respect of mobile bearing no.9324260303 of Ajimuddin Shaikh (Exh.624), its ...29/
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call detail reports (Exh.625), office copy of the letter by Additional Commissioner of Police issued to B.P.L. Communication and their reply dated 26/8/2008 (Exh.633 & Exh.634), certified copy of subscriber registration form of BPL Mobile of Pandurang Patil along with xerox copy of his ration card, electricity bill and driving license (X51 & X49 colly.) call detail reports of mobile bearing no.9870557511 of Pandurang Patil which was found in possession of Kiran Pujari (Exh.635), office copy of the letter issued by the Additional Commissioner of Police to Bharati Airtel dated 28/7/2008 (Exh.643) and their reply dated 8/8/2008 (Exh.644), subscriber enrollment form of Advocate Somet Shirsat (Exh.645), subscriber detail report i.e. Airtel prepaid application form of accused Kiran B. Amle of his mobile no.9867547490 along with self attested xerox copy of driving license (Exh.646), call detail report of mobile no.9892222379 of witness Advocate Somet Shirsat (Exh.647), call detail report of mobile no.9867547490 of accused Kiran Amle (Exh.648), letter issued by TATA Tele Services on 9/8/2008 to the Additional Commissioner of Police regarding mobile no.9222003157 of P.W.11 Mohd. Qasif (Exh.652), call detail report of mobile no.9222003157 (Exh.653) and its certificate (Exh.654) as well as its cell Id. address (Exh.655), subscriber detail report of mobile no.9324260303 of P.W.10 V.D. Pawar (X44 Exh.429 colly.), xerox ...30/
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copy of the license of Mohd. Qasif (X45) and his original license (Article 2) and certified copy of subscriber detail report of Mohd. Qasif (X58).
45.
The prosecution further relies on subscriber detail reports of accused Pravin Shetty of mobile No.9967735462 (X64) and its call detail report (Exh.694X64), letter issued by Bharati Airtel Ltd. along with its cell Id address (Exh.695 colly.), letter issued by Superintendent of Police, Alibaug to the Manager, Vodafone dated 23/6/2008 (Exh.682), copy of letter issued by Additional Commissioner of Police dated 31/7/2008 & 8/8/2008 (Exh.683 & Exh.684), original prepaid application form of Rakesh Sawant of his mobile no.9920960871 along with its self attested copy of driving license (X59), its call detail report and cell site list of mobile no.9920960871 (Exh.685 & Exh.686), subscriber detail report of Mobile No.9930159144 which is in the name of Narendra N. Roge (X
60) and its call detail report (Exh.687).
46.
The prosecution further relies on subscriber detail report i.e. prepaid application form of Anthony Raj Nannya Dravid in respect of his mobile no.9833110177 (X61Exh.757), xerox copy of his ...31/
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passport (Exh.758) and its call detail report (Exh.688), subscriber detail report i.e. colour xerox copy of application form of Orange Company of accused Jaya Chheda along with address proof and proof of identity i.e. xerox copy of PAN card (X62), call detail report of her mobile no.9833418884 (Exh.689 colly.), 47.
The prosecution further relies on subscriber detail report i.e. original prepaid application form of accused Harish M. Ganiga in respect of mobile no.9833507523 along with self attested xerox copy of driving license (X63), its call detail report (Exh.690). They also relied on the certificate issued by Bharati Airtel in respect of mobile no.9867547490 and 9967736462 (Exh.699), call detail report of mobile no.9867547490 (Exh.700), its cell Id report (Exh.701), call detail report of mobile no. 9967736462 (Exh.702), its cell site list (Exh.703) and their cell site list as well as cell site address (Exh.706 colly.). Copy of letter issued by Additional Commissioner of Police to the Nodal Officer, Bharati Airtel, dated 9/8/2008, in respect of requirements of details of mobile no.9967736462 (X57Exh.720).
48.
The prosecution relies on the muddemal receipt (Exh.718), office copy of the wireless issued by investigating officer G.C. Hiremath to Sr.P.I. dated 14/6/2008 to R.T.O., Alibaug ...32/
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(Exh.732), office copy of covering letter dated 19/6/2008 (Exh.735), office order issued by Joint Commissioner of Police (Crime) for transfer of investigation to DCBCID (Exh.783), letter dated 1/7/2008 issued by LCB (Exh.784), certified copy of the station diary extract (Exh.785), letter dated 3/7/2008 (Exh.787), letter issued by Additional Commissioner of Police for transferring the inquiry of application of Suresh Bhagat (Exh.800), copy of reply affidavit filed in Writ Petition No.1013/2008 (Exh.801), office copy of letter dated 18/7/2008 issued to Additional Commissioner of Police (Exh.810), office copy of letter issued to DCP, SBII (Exh.811) and letter dated 12/9/2008 (Exh.812).
49.
In support of their case, the prosecution relies on the documents/hotel bills in respect of accused no.8 Hitesh Bhagat i.e. xerox copy of the passport of P.W.03 (Exh.366), hotel bills (Exh.373), reply letter dated 29/7/2008 sent to Additional Commissioner of Police, Crime Branch (Exh.441), departure card (Exh.442), letter dated 6/9/2008 (Exh.546), letter informing booking (Exh.547 colly.), 'C' Form (Registration form) (Exh.551), letter dated 2/9/2008 (Exh.557), card (two pages) (Exh.558A), Email Id of witness Rahul Mehta page 517 (Exh.565), information with covering letter dated ...33/
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2/9/2008 to DCBCID by P.W.44 (Exh.571), photocopies of the bills (Exh.573), application along with affidavit by P.W.47 (Exh.582), extract of SunnSand Hotel register (Exh.697).
50.
Besides this the prosecution also relies on the xerox copy of the air tickets of Hitesh Bhagat and P.W.03 Ritesh Mehta (Article 1 colly. and Article 1/1), copy of R.C. Book of MH02AP4563 (Article 1 colly.) and toll receipt (Article 28).
51.
During cross examination of P.W.05 approver Kiran Pujari admitted the documents i.e. panchanama in respect of the seizure of the documents from his possession vide Exh.393, insurance policy of car along with duplicate (Exh.395), P.U.C. Certificate (Exh.396), visiting card of Kiran Pujari (Exh.397), identity card of Kiran Pujari of Mumbai Crime report (Exh.398), receipt of the license of revolver (Exh.399), office copy of letter dated 7/9/2007 (Exh.400), permission of revolver (Exh.401), xerox copy of letter dated 27/3/2007 alleged to be issued by M.L.A. Sanjay Dina Patil (Exh.402), service book of motor car (Exh.403), affidavit of Giyasuddin and one Yusuf Khan dated 15/5/2008 (Exh.404 and Exh.405).
...34/
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52.
During cross examination of the witnesses, defence relies on the various documents i.e. Google information in respect of the failure of brakes of the motor vehicle from 'crashforensics.com' (Exh.476 and Exh.477), copy of the insurance policy of Scorpio (Exh.478), certified copy of the chargesheet (Exh.515), copy of complaint dated 21/9/2006 filed by accused Jaya Chheda (Exh.516), copy of complaint dated 24/6/2009 filed by Jaya Chheda (Exh.517), copy of application for bringing the legal heirs on record along with death certificate of Maniben (Exh.519 colly.), copies of applications (RAE Suit no.663/1082/2005 & RAE Suit no.665/1082/2005) (Exh. 520 colly. to Exh.522 colly.), copy of chamber summons in Suit no.3197/2008 (Exh.526), certified copy of Special Leave Application no.5084/2005 against the order in Criminal Application No.4410/2002 (Exh.527 colly.), extract of accidents near the scene of offence (Exh.738), certified copy of order passed in Writ Petition No.1013/2008 (Exh.749), copy of report dtd.16/6/2008 to Chief Judicial Magistrate, Alibaug (Exh.773), acknowledgement receipt dated 13/6/2008 (Exh.776), receipt dtd. 13/6/2008 regarding handing over the articles to API Hiremath (Exh.777), letter dated 16/6/2008 (Exh.778), letter dated 18/6/2008 of Poynad police station (Exh.779) & letter dated 18/6/2008 issued by API Hiremath (Exh.780).
...35/
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53.
At the end, I have heard extensive arguments advanced by the learned Spl.P.P. and the learned defence Counsel for the parties have also filed the exhaustive written notes of arguments. Learned Spl.P.P. Ms. Kalpana Chavan submitted that the evidence on record clearly establishes the prosecution theory that the accused hatched the conspiracy and thereby committed murder of deceased Suresh Bhagat and six innocent persons. The accused no.7 is the mother of accused no.8 and divorcee of deceased Suresh Bhagat. Though accused no.8 was residing with deceased Suresh Bhagat in Worli, he was not only in visiting terms but in close contact with his mother i.e. accused no.7 Jaya Chheda. Accused no.4 Suhas Roge was in visiting terms and used to frequently go to the house of accused Jaya Chheda at Pant Nagar, Ghatkopar. By examining the witnesses, prosecution proved that the accused hatched the conspiracy and contracted/give 'supari' to accused Harish Mandvikar to eliminate Suresh Bhagat in accident while returning from Alibaug Court. As a part of the conspiracy, on 15/5/2008, with a view to ensure that accused no.8 Hitesh Bhagat did not travel with deceased Suresh Bhagat, Jaya Chheda instructed Advocate Somet Shirsat that accused Hitesh Bhagat is not feeling and to seek the exemption. Again on 13/6/2008, she ensured Hitesh Bhagat's absence in Alibaug Court by again asking Advocate Somet to seek exemption for the ...36/
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attendance in Alibaug Court. While deceased Suresh Bhagat and others were returning, accused no.1 Pravin Shetty drove his truck from the opposite side and thrust Scorpio and thereby, Suresh Bhagat and six innocent persons died. It was not a mere accident, but it was a plot of intentionally and knowingly committed the murder. After the incident, accused no.1 Pravin Shetty ran away from the spot and reached at Hotel Sai Kutir and called the accused Harish Mandvikar and Kiran Amle. At the time of incident as well as prior to the incident, accused were in continuous contact with each other on their mobiles. Prosecution brought CDR and SDR of their respective phones by examining the Nodal Officers of respective companies. The evidence in respect of mobiles clearly establishes the conspiracy and murder. At the same time, as per cell Id, presence of the accused at specific location is also brought on record. The chart (Exh.850) prepared for the ready reference from the substantive evidence of CDR and Cell Id transpires that accused were in contact with each other as well as contacted approver Ajimuddin Shaikh, Advocate Somet Shirsat and Anthony Raj Nannya Dravid.
54.
Learned Spl.P.P. further submitted that though the pancha witnesses did not support, the panchanamas are duly proved by examining the IO as well as the approver and witnesses. Extra ...37/
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judicial confession of P.W.04 has been proved by P.W.15 Vinod Naik, P.W.16 Joseph Robert Rodrigues. Though P.W.68 Sanjay Shirke turned hostile, the witness admitted that on 13/6/2008, accused no.4 Suhas Roge, P.W.15 Vinod Naik and P.W.16 Joseph Rodrigues, had a meeting in his house. Thereby, prosecution has proved extra judicial confession of P.W.16. By examining P.W.22 Dr. S.K. Desai, it has been brought on record that due to headoncollusion, seven persons were killed as well as accused no.1 Pravin Shetty sustained the injuries on his nose and forehead. Due to headon collusion/heavy impact, all the incumbents in the jeep died as they sustained the injuries to their head and thereby, their brains were ruptured and pierced from the skull. P.W.03 Ritesh Mehta, P.W.42 and P.W.43 Abdulla Khan are the friends of accused no.8 Hitesh Bhagat. By examining the witnesses i.e. Managers and the travel agent, it has been brought on record by the prosecution that immediately after the death of Suresh Bhagat, accused Hitesh Bhagat had stayed in different Hotels by hiding his identity i.e. stayed in different names of his friends i.e. P.W.03, P.W.42 and P.W.43. The complaint (Exh.747) and Writ Petition (Exh.748) of the deceased Suresh Bhagat are the material piece of evidence in respect of cause of his death, and can be treated as a dying declaration. The chain of circumstances clearly establishes the guilt of the accused. Thus, prosecution has proved that accused ...38/
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hatched the conspiracy and committed the murder of deceased Suresh Bhagat. In addition to her exhaustive arguments, learned Spl.P.P. Ms. Kalpana Chavan filed written notes of arguments (Exh.857).
55.
In reply, learned Senior Advocate Shri Adhik Shirodkar for accused no.4 submitted that it is an unfortunate accident, but, prosecution has given a colour of deliberate collusion as a part of the conspiracy of commission of the murder. As per the statement of P.W.06 ASI More, statements of 5 to 6 eye witnesses have been recorded. But, the prosecution withhold the evidence of eye witnesses and suppressed the material evidence. Possibility of accident due to overtaking cannot be ruled out. While drawing the spot panchanama, topography, situation of the road, skid marks and tyre marks has not been brought on record. No sketch map is filed on record. It is brought on record that deceased Suresh Bhagat was addict of opium. But prosecution never preserved the viscera of the deceased Suresh Bhagat as well as other deceased. No proper explanation has been given by the prosecution regarding erasions in FIR. RTO inspector never verified the brake system of both the vehicles. IO never ascertained whether Scorpio driver was under the influence of drug or liquor. Merely because IO PI Hiremath come to the conclusion that ...39/
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driver of the truck is guilty. I.O. never carried out the proper investigation. 56.
Learned Sr. Advocate Shri Adhik Shirodkar further submitted that while tendering the pardon to P.W.05 Kiran Pujari as well as P.W.62 Ajimuddin Shaikh, prosecution did not follow the parameters which are required by law. They were straight way granted no objection without any condition. P.W.05 Kiran Pujari is an extortionist and blackmailer. P.W.62 is examined at the fag end of the case. Their evidence is exculpatory and not inculpatory. Therefore, it is liable to be thrown away. At the same time, the witnesses on the point of extra judicial confession are examined at belated stage. Prosecution failed to explain the delay in examining P.W.16 Joseph Rodrigues. Witness Sanjay Shirke is hostile. Testimony of P.W.15 Vinod Naik is based on inherent improbabilities. Their evidence is hearsay evidence, therefore, it cannot be accepted.
57.
Learned Sr. Advocate Shri Adhik Shirodkar further submitted that P.W.17 Varsha Tushar Shah is a tutored witness. P.W.32 Vinod Bhagat is having inimical terms with deceased Suresh Bhagat as well as with accused no.7 and 8. It has come on record that he approached LCB (Crime), Commissioner of Police as well as ...40/
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approached the State government for the appointment of Spl.P.P.. It was only because Suresh Bhagat has left huge property and to eliminate the share of accused no.7 and 8, malicious investigation has been carried out by the IO at the instance of P.W.32 Vinod Bhagat. The evidence of P.W.02 Advocate Somet Shirsat has no evidentiary value as it is within the ambit of privilege communication u/s. 126 of Evidence Act. Almost all the panchas are turned hostile. Therefore, prosecution has miserably failed to prove the seizure as well as memorandum panchanamas. Complaint of Suresh Bhagat as well as Writ Petition bearing no.1013/2008 cannot be treated as dying declaration because Writ Petition has been disposed of by the Hon'ble High Court on the ground that allegations are articulated as a defence in N.D.P.S. case. While recording the statements of witnesses u/s. 164 of Cr.P.C., Ld. Metropolitan Magistrate has not followed proper procedure. The evidence on record is full of omissions and contradictions. Prosecution miserably failed to prove the commission of conspiracy as well as failed to complete the chain of evidence. The evidence filed on record is unreliable, therefore, prosecution miserably failed to prove the commission of murder by hatching conspiracy with the other accused. Thereby, prosecution miserably failed to prove the charges levelled against the accused. IO filed the colourful and manipulated chargesheet with ...41/
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malafide intention. In addition to his exhaustive arguments, learned Senior Advocate Shri Adhik Shirodkar filed written notes of arguments (Exh.859).
58.
Learned Counsel Shri S.R. Pasbola for accused no.7 exhaustively reiterated the arguments regarding the spot and its topography, privilege communication, extra judicial confession, approver and circumstantial evidence. The accident has been labeled as a homicidal death. At the most, it was rash and negligent driving of the driver of Scorpio and thereby, IO failed to take report of CA of driver of the jeep as well as Suresh Bhagat and others by taking the viscera. Prosecution come up with the theory of circumstantial evidence with criminal conspiracy. They have mainly relied on extra judicial confessions and the evidence of approver. Their testimonies are suffering from basic infirmities which is called as “particupus criminus” as they are not inculpatory. The evidence of P.W.35 Vinodkumar Menon regarding newspaper article and news in 'Mid
Day' (Gujarathi) is not substantive piece of evidence. Media report does not have evidentiary value. At the same time, the prosecution never examined the translator who translated the news from English to Gujarathi. Hon'ble High Court disposed of the Writ Petition on the ground that deceased has raised the defence in N.D.P.S. cases. ...42/
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Thereby, complaint and Writ Petition cannot be treated as a dying declaration.
59.
Learned Counsel Shri S.R. Pasbola further submitted that as per the prosecution, mobile bearing no.9833418884 and mobile no.9819492925 belongs to accused Jaya Chheda. P.W.80 IO A.C.P. Duraphe admits that mobile no.9819492925 is in the name of Sharad Avhad, though states that it was used by accused no.7 Jaya Chheda. Nothing is filed on record by the prosecution that it was used by the accused. Call detail record (Exh.689) is in respect of her mobile no.9833418884. It does not transpires that accused no.7 was in contact with any of the accused. The subscriber detail record are the xerox copies. They are not proved by the prosecution. It cannot be presumed that mobile is in the name of accused and thereby, they used the same. Subscriber detail report and the cell Id. are not electronic record. They are not exhibited for proving the same as per the provisions of law. Prosecution never proved the identity of the user or subscriber, who used the mobile at the relevant time. Subscriber detail record (Exh.645 & Exh.646) are not electronic record. Therefore, though they are marked as exhibit, it cannot be read in evidence as they are not admissible in the evidence. ...43/
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60.
Learned Counsel Shri S.R. Pasbola also exhaustively argued regarding the subscriber detail record, call detail record as well as cell Ids of the respective mobiles, which were found in the possession of the accused. He submitted that it is alleged that subscriber detail record (X64) is of accused no.1 Pravin Shetty, subscriber detail record (X63) is of Harish Mandvikar, subscriber detail record (Exh.58 & X59) are of P.W.11 Mohd. Kasif and P.W.12 Rakesh Sawant. But they are alleged to be in possession of accused Suhas Roge. Subscriber detail record (X51) is alleged to be of Kiran Pujari, subscriber detail record (X62) alleged to be of accused Jaya Chheda and so on. Subscriber detail records is not an electronic record and they are the xerox copies. Therefore, it cannot be read in evidence. Prosecution relied on call detail records of respective mobile numbers i.e. 9892222379, 9324260303, 9870557511, 9222003157, 9920960871, 9930159144, 9920155555, 9867547490, 9833507523, 9833418884, 9967736462 and 9833110177. Almost all call detail records do not bear the valid certificate which required as per the provisions of Section 65B (4) of Evidence Act. Except TATA Telecommunication, nobody has filed the certificate in the format. Possibility of manipulation in the subscriber detail record as well as call detail record and cell Id cannot be ruled out. The subscriber detail records were filed by the concerned agencies. To prove the ...44/
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subscriber detail records, prosecution never called the concerned agency to prove the subscriber detail record. The cell Id and the call details does not match with each other. There is a difference in the call details. Prosecution never explained as to why the said difference occurs. At the same time, roaming network is not shown in call detail records. Call detail records do not reflect cell Ids. P.W.63 admitted that Exh.686 and Exh.706 are manually prepared. Subscriber detail record does not bears the date, logo of the Telecommunication Company and signature of authorised person or concerned Nodal Officer. Therefore, this record should not be relied upon. At the same time, though subscriber detail record i.e. X64 of Pravin Shetty is filed on record, prosecution never seized the mobile from the possession of the accused no.1 Pravin Shetty. Call detail records of Exh.694 and Exh.648 does not match with each other. At the same time, prosecution never explained as to why they are not matched with each other. It is necessary for the court to satisfy upon the accuracy of the calls. One call reflects in one exhibit does not reflect in another call detail record. It was necessary for the prosecution to prove use of mobile by the person concerned. Cell Id are not authenticate. They does not bear certificate in prescribed form. Therefore, the inaccurate record of call detail record has no evidentiary value, and does not inspire confidence.
...45/
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61.
Learned Counsel Shri S.R. Pasbola further submitted that circumstantial evidence is to be established independently. There is always possibility of conjunctures and surmises. Nothing is brought on record to prove the motive viz. grabbing of mataka business after the death of Suresh Bhagat. Hence, he prayed to acquit the accused no.7. In addition to his exhaustive arguments, learned Counsel Shri S.R. Pasbola filed written notes of arguments (Exh.863).
62.
Learned Advocate Shri Vilas Naik for the accused no.3 reiterated the arguments advanced by the Advocates for the defence regarding spot panchanama, topography, extra judicial confession, privilege communication, approver as well as circumstantial evidence and other objections. He submitted that it is the prosecution case that out of 7, 6 were died on the spot. Thereby, as per the provisions of Section 174 of Cr.P.C., it was necessary for investigating officer to prepare the inquest panchanama through the Executive Magistrate on the spot. Injured Kamlesh Kamble was alive till forwarding to Sion Hospital. Despite of sufficient opportunity, prosecution purposely never recorded his dying declaration. P.W.17 Varsha Tushar Shah is a tutored witness. Whereas P.W.32 Vinod Bhagat pressurize the investigating agency by his political influence to grab the property of the deceased Suresh Bhagat. While recording the ...46/
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statements of u/s. 164 of Cr.P.C., P.W.72 learned Metropolitan Magistrate Shri Kshirsagar failed to follow the procedure laid down by law. Prosecution failed to prove the panchanama u/s. 27 of Indian Evidence Act and the other panchanamas which are drawn with the help of stock panchas. The alleged incident is natural accident but the colourful chargesheet has been filed by the investigating agency by joining the hands with the witnesses with ulterior motive. In addition to his exhaustive arguments, Advocate Shri Vilas Naik filed the written notes of arguments (Exh.876A). 63.
In reply, learned Advocate Shri M.R. Jethmalani for accused no.8 submitted that the evidence of approvers is not against accused no.8. Their testimonies are false and not corroborated and there is no true disclosure. There is no substantive evidence against accused no.8. At the most it is a conspiracy between accused no.4 and accused no.7. There is no single allegation against accused no.8. During the cross examination of P.W.05 approver Kiran Pujari, it has brought on record that accused no.7 is interest protector of his father's business. He also admitted that he did not feel that Hitesh Bhagat is having inimical terms with his father and there were no occasions to meet Hitesh Bhagat except two casual meetings. By examining P.W.03 Ritesh Mehta, it has brought on record that ...47/
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feelings of accused Hitesh Bhagat on hearing the sad news of the death of the father. Accused no.8 take disparate steps to come back to India, left the Hotel and returned to Mumbai immediately. At the same time, immediately, they returned to India with an earliest Aeroplane and attended the funeral. This shows the innocence of accused no.7 mother as well as accused no.8 her son Hitesh Bhagat. They are falsely implicated in this crime. P.W.32 admits that he intends to keep accused no.7 and 8 behind the bar. His sole testimony is prejudice and hearsay. Scene of offence is not properly placed before the court in a proper perspective. The touch stone probability of the incident is not filed on the record. 64.
It is to be noted here that after the partheard arguments by Senior Counsel Shri M.R. Jethmalani, Advocate Taraq Sayyed filed an application that Senior Counsel is unable to attend the Court and thereby, learned Advocate Taraq Sayyed continued his arguments on behalf of the accused no.8.
65.
Learned Advocate Shri Taraq Sayyed for accused no.8 submitted that to prove the travel and stay of accused no.8 Hitesh Bhagat in Hotel, the prosecution has examined eight witnesses i.e. P.W.04 Nitin Chavan, P.W.38 Rajendra Kamble, P.W.40 Michael ...48/
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Remedious, P.W.41 Bhushan Rane, P.W.43 Abdulla Khan, P.W.44 Satish Vaiday, P.W.47 Tushar Mali and P.W.65 Ajay Pal. But, no material evidence is brought on record that during the period accused no.8 Hitesh Bhagat was stayed in the respective hotels. Prosecution never carried out identification parade as well as never filed any C.C. T.V. Footage which shows that accused was residing in the respective Hotels. All these hotels are high ended in which C.C. Cameras are installed. But, prosecution failed to bring the said camera footage on record. Thereby, it cannot be said that accused suppressed his identity and try to remain abscond. No a single witness identified the accused. P.W.43 Abdulla Khan is a got up witness. The evidence of P.W.43 is false and fabricated. The panchanama dated 13/7/2008 (Exh.637) is of innocuous recovery. Evidence of P.W.58 Preetam Mahadik, P.W.65 Ajay Pal and P.W.73 PSI Pawar is not found to be reliable. Though prosecution has examined 80 witnesses, there is no incriminating evidence against the accused. Therefore, benefit of doubt is to be given to the accused. Hence, he prayed to acquit the accused no.8.
66.
In reply, learned Advocate Shri A.R. Rasal for accused no.1 driver Pravin Shetty reiterated the arguments of the Advocates for the defence. He submitted that the testimony of P.W.06 M.M. ...49/
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More and I.O. P.W.71 G.C. Hiremath is contradictory to each other. The spot of incident is of heavy traffic. Eye witnesses were easily available to the prosecution. Deliberate non examination of eye witnesses is fatal to the prosecution. P.W.01 H.C. Mokal tampered the FIR. I.O. P.I. Mahale made the interference in the investigation when investigation was with Poynad police station and with L.C.B. (Crime). Prosecution deliberately failed to file the log books, visit book, station diary entries and phone register of Poynad police station. There is a lack of evidence in respect of motive at the hands of accused no.1. In such situation, cardinal principle of innocence of the accused no.1 is in his favour. Accordingly, he also filed the exhaustive written notes of arguments (Exh.878).
67.
Learned Advocate Shri Amit Munde for the accused no.5 advanced his arguments that though prosecution has examined 10 witnesses to prove the conspiracy and 22 witnesses to show the case of murder, not a single witness whisper against the accused no.5 Kiran Amle. None of the witness speak the specific role of accused Kiran Amle. The witnesses on the point of extra judicial confession never averred against the accused. Place of arrest of accused no.1 is not mentioned in the arrest panchanama (Exh.496), thereby, it cannot be said that he was arrested from the house of accused Kiran ...50/
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Amle. Nothing is recovered from accused Kiran Amle. Mere testimony of P.W.59 Sandeep Shirodkar cannot be held that the mobile was belongs to the accused. The recovery of mobile from P.W.59 Sandeep Shirodkar is planted. Mere testimony of P.W.18 Sunil Jangale and P.W.67 Ganesh Rane is not sufficient to prove the guilt of the accused.
68.
Learned Advocate Shri Amit Munde further submitted that I.M.E.I. number mentioned on CDR (Exh.648) as well as on seizure panchanama (Exh.717) are different. Conversation of accused no.1 driver Pravin Shetty and the accused no.5 as per CDR (Exh.648) is of four minutes and seven seconds, is not sufficient to prove the conspiracy. The cell Id of his mobile is not shown in CDR (Exh.648). Only circumstance is that his mobile was with accused Harish Mandvikar is not corroborative evidence. None of the witnesses and the investigating officer stated the role played by the accused no.5 Kiran Amle. It is admitted on record that Exh.694 is not retrieved from the roaming network. Cell Id extract (Exh.701) are not taken from the master computer. CDR (Exh.700) are not in sequence. The evidence of P.W.66 is false and fabricated as it was filed at belated stage, who admitted that its fonts are changed. CDR (Exh.646) is not duly proved. Therefore, the evidence against accused Kiran Amle is ...51/
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not found to be trustworthy. In addition to his oral arguments, learned Advocate Shri Amit Munde filed written notes of arguments (Exh.881).
FIR & SPOT
69.
Upon perusal of record as well as upon hearing of the Advocates, it has come on the record that on the day of the incident, P.W.01 Head Constable J.D. Mokal was attached to Alibaug police station. At about 13:45 hrs., he received the telephonic message in respect of the accident between jeep and truck near Village Shahabaj, Taluka and District Alibaug. Immediately, he communicated the information to API Hiremath and they both proceeded towards the spot with other staff. When they reached the spot, they found vehicles i.e. truck no. MH04CA4445 and Scorpio no.MH04AC2475 were separated. Seven injured were forwarded to Civil Hospital, Alibaug. Thereafter, immediately, at about 14:30 hrs., he lodged the report (Exh.330) and registered the offence vide C.R.No.25/2008. Since, six persons were declared dead by Civil Hospital, Alibaug, crime was registered u/s. 304A, 279, 337, 427, 338 of I.P.C. as well as u/s. 184, 134 of Motor Vehicle Act. The testimony of P.W.01 informant J.D. Mokal corroborates his report (Exh.330). During his cross examination, he admitted that out of seven, six were succumbed to ...52/
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the injuries on the spot. Learned Advocate Shri Vilas Naik raised the objection that when they found that six persons were died on the spot, it was the duty of the prosecution to draw the panchanama on the spot u/s. 174 of the Cr.P.C., at the hands of Executive Magistrate. It is to be noted here that it is the case of impact between two vehicles resulting into multiple deaths. In such situation, it was the prime duty of the police officer to send the victims to the hospital. Police officer is not an expert to decide whether they were dead or severely injured. The police officers thus correctly reacted and were not wrong in not drawing for the panchanama. Therefore, the objection raised by the learned advocate in respect of the drawing a panchanama on the spot is not sustainable. 70.
The defence also raised objection that there is a erasion and correction in the Report stating that Scorpio jeep was coming from Alibaug to Pen. They raised objections that this has been deliberate act of the prosecution. But, I do not find so since it is not unnatural that in the rush of the things and in haste something is written inadvertently at the first time. Moreover, it has no relevance because in the format FIR (Exh.330A) the fact is correctly stated. At the same time, testimony of P.W.71 Sr.P.I.G.C. Hiremath corroborates the testimony of P.W.01 J.D. Mokal and P.W.06 M.M. More.
...53/
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71.
To prove the spot panchanama (Exh.609), prosecution has examined P.W.52 pancha D.C. Mhatre, who is adjoining agriculturist of the spot of incident. It has come in his evidence that when he learn the vehicular accident near 'Fauji Dhaba', he reached the spot, he saw that there was a vehicular accident between one Scorpio and big truck. Police carried out the measurements of the vehicle and the area and prepared the panchanama. Another pancha Madhukar Patil was also present. Front side of Scorpio was completely damaged as well as there was heavy damage to the front side of the truck. Thereby, he signed the panchanama (Exh.609). In his cross examination, P.W.52 pancha D.C. Mhatre admitted that he reached the spot, at about 3.30 p.m., when the vehicles were separated. He was on the spot upto 6 to 7 p.m. Advocate for the accused shown the photographs of the truck as well as Scorpio which he admits (Exh.610 to Exh.612). He also admitted that the truck as well as Scorpio were not on the road but in the field. He further admitted that there were no tyre marks or skid marks on the road as well as on the kuccha road. He admitted the topography of the spot in respect of the adjacent companies Dharamtar Creek Bridge, Nippon Damro, Sponge Iron Company, Ispat Port, etc.. He also admitted that there is no divider to the road. It is also admitted in the cross examination that the spot of incident is of curve as well as the slope. Even during ...54/
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the cross examination of P.W.52 D.C. Mhatre, his testimony remains intact. Though the topography of the spot has not been brought by the prosecution, it has been brought by the defence. Prosecution proved the spot panchanama showing that the driver of the truck accused no.1 Pravin Shetty had not applied the brakes and gave the dash to Scorpio with a force in which the tyres of Scorpio were burst as well as the front axel of the truck was also damaged due to heavy impact.
72.
Investigating officer P.W.71 P.I. G.C. Hiremath's testimony is corroborate by the testimony of P.W.52 pancha D.C. Mhatre. He is the witness to the spot panchanama. He further stated that photograph (Exh.612) shows the dead body of Suresh Bhagat who was sitting besides the driver. After the registration of the crime, he draw the spot panchanama as an important document in accident case. Topography of the road in respect of the slopes and curves and the distance from the slop is necessary to be mentioned. He denied that there was heavy traffic on the said road. He further admitted that he tried to see the tyre marks or skid marks, but they were not seen. Even during the cross examination of investigating officer P.W.71 G.C. Hiremath, nothing has been brought on record to ...55/
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disprove the spot panchanama (Exh.609). In support of their testimony prosecution also examined P.W.06 A.S.I. M.M. More.
73.
(A) Learned Senior Advocate Shri Adhik Shirodkar placed reliance on (i) Keisam Kumar Singh and another v/s. State of Manipur, (1985) 3 SCC 676, in which it has been held, “local inspection by the Court is no substitute for evidence or proof.” (ii)
Ganesh Bhavan Patel & anr. v/s. State of Maharashtra, (1978) 4 SCC 371, in which it has been held, “inordinate delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story”.
(B) Learned Advocate Shri Vilas Naik placed reliance on (i) State of Andhra Pradesh V/s. Punati Ramulu, LAWS (SC) – 1993 – 2 – 89, in which it has been held, “when it is found that I.O. deliberately fail to record FIR on receipt of information of cognizable offence of the nature and had prepare the FIR after reaching the spot after due deliberations, consultations and discussion, the conclusion becomes inescapable that the investigation ...56/
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is tainted, therefore it is unsafe to rely on the tainted investigation.” (ii) Laxman V/s. State of Rajasthan, 1997 Cri.LJ 2718, in which it has been held, “the suppression of the earlier report and the delay in the dispatch of alleged FIR to the Court with definite possibility speak that improvement and embellishment and has tried to setup a distorted version of the incident.”
I have gone through the above cited rulings. The principles laid down in the above cited rulings are not helpful because local inspection has not been carried out by the Court. There is no delay on receipt of information as well as delay in dispatch of F.I.R. to the court nor there is any suppression.
74.
Considering the evidence on record, it is obvious that P.W.01 H.C. J.D. Mokal lodged the report immediately after the incident. Later on, they prepared the spot panchanama (Exh.609). Prosecution proved the spot panchanama by examining P.W.52 pancha D.C. Mhatre. During the cross examination of the prosecution witnesses, it is admitted that there were no skid marks on the spot. While drawing the spot panchanama, nowhere it is mentioned that there were skid marks/tyre marks. Thereby, it is crystal clear that driver of the truck no.MH04CA4445, never applied the brakes and there were no skid marks or tyre marks on ...57/
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the spot of incident. This would be so because he had given deliberate dash to Scorpio. By examining P.W.01 HC Mokal, prosecution proved the report (Exh.330). Spot panchanama has been duly proved through P.W.52 D.C. Mhatre and IO G.C. Hiremath. RTO REPORT
75.
P.W.23 Motor Vehicle Inspector J.P. Thanekar has deposed that as per the letter of Poynad police station, dated 16/6/2008, he inspected the truck no.MH04CA4445 and Scorpio no.MH01AC
2475. During the inspection of Scorpio, he found that brake connection was broken, steering arm and connection were broken, engine was damaged, gear lever was damaged, front right side chassis was damaged, tyres of rear sides were burst, front right side tyre burst, radiator damaged, wind screen glass was broken, head light was broken, top was damaged, rear glass was broken, driver's sit was broken and all front show was broken. Vehicle was not tested on road because of heavy damage, Therefore, opinion cannot be given about other defects. Accordingly, he issued the report (Exh.473). 76.
It has further come in his evidence that on the same day, he inspected the truck no. MH04CA4445 and noticed that brake connection was broken, steering connection was broken, gear box was ...58/
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intact, front right side chassis bend, front axel separated from the chassis, front brake connection was broken and diesel tank damaged. Vehicle was not tested on road because of heavy damage. Therefore, opinion cannot be given about other defects. Accordingly, he issued the report (Exh.474). In his cross examination, he admitted that he never visited the spot of incident as well as such accidents are possible while attempt of overtaking by other way. The brake connections of both the vehicles were damaged, therefore, his admission for non examination of test drive has no relevance. In his lengthy cross examination, he admitted the various reasons for the accident. He also admitted that Scorpio is a S.U.V. i.e. Sports utility vehicle. Though, he was cross examined lengthy, his reports as well as testimony remain intact.
77.
Upon perusal of the report (Exh.473 and Exh.474) as well as testimony of the P.W.23 J.P.Thanekar, it is obvious that it was a heavy impact. The theory of overtaking is not found believable because the reports in respect of the damage of Scorpio as well as TATA truck clearly shows that it was the headon collusion. If any of the vehicles took overtake, such type of accident could not have happened. The photographs and Compact Disk which are filed on record by the prosecution clearly shows that there was damage to the ...59/
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right side of Scorpio as well as of the Truck. Therefore, the possibility of the incident taking place while overtaking of the vehicle cannot be believed.
CONDITION OF VEHICLES
78.
It has come in the evidence of P.W.54 Vijay Chavarkar that immediately after the incident, he reached the spot and took the photographs (Exh.620) and also subsequently prepared the CD (Exh.619). P.W.49 photographer Mahesh Musale submitted that as per the direction of investigation officer G.C. Hiremath, he obtained 20 photographs (Exh.589 colly.) and thereby, obtained the payment of Rs.500/ vide receipt (Exh.587). The testimony in respect of the photographs clubbed with the testimony of P.W.49 and P.W.54 is corroborate to each other and thereby, prosecution proved the photographs which are filed on record. The photographs which were filed on record, were admitted by the defence in their cross examination. Thereby, there is no reason to disbelieve the evidence filed on record by the prosecution.
MEDICAL OFFICERS & POST MORTEM REPORTS
79.
It has come in the evidence of P.W.34 Dr. S.M. Kondekar that he performed the autopsy of the dead body of Tushar Shah. On ...60/
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external examination, he found the following injuries i.e. fracture of pelvis and external genital embedded in that, there was cut injury separating thigh from perinum. On examination of position of limbs, he found that there was evidence of fracture left forearm, fracture right humerus, fracture right tibia fibula, evidence of CLW at knee dorsally ventrally measurement of 5 cm x 3 cm x 2 cm., CLW left thigh 3 cm. X 2 cm. X 4cm. X 2 cm., CLW over scalp, CLW over right eyebrow, CLW over left eyebrow with underline fracture, blood coming through nose and ear.
On internal examination, he found following injuries :
There was collection of blood clots in peritoneal cavity, intestinal mesentry showing multiple blood clots all over area, evidence of injury to liver at the junction of 2/3 rd and 1/3rd, evidence of blood clots in liver capsule, blood clot at the inferior wall of liver, evidence of splenic rupture and blood in kidney capsule and left kidney injury. Cause of the death was “haemorrhage shock due to multiple organ injury in road traffic accident”. Thereby, he issued the post mortem report (Exh.534). In his cross examination, he admitted that on opening of stomach, he did not find the smell of alcohol and drug. Therefore, he did not find it necessary to preserve viscera. ...61/
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80.
By examining P.W.37 Dr. A.S. Phutane, it has come in his evidence that during post mortem of deceased Suresh Bhagat, he found following injuries i.e.
(i)
Skull vault is open with multiple skull bone fracture. Whole brain was lost. Both eyes lost. Piece of skull bone seen attached to scalp.
(ii) CLW on right forearm – 4 x 1 cm.
(iii) Fracture of left humerus middle /third
(iv) Compound fracture of left second and third metacarpus.
(v) Fracture of left side Tibia fibula lower end.
(vi) Fracture dislocation of right knee with CLW anterior laterally 10 x 10 cms. Pieces of bones and muscles seen through the injury.
On Thorax multiple contusions on chest on both sides. On internal examination, he found following injuries :
(i)
Left multiple rib fractures.
(ii) Blood in thoracic cavity on left side with injury to left lung.
(iii) Right lung was congested.
(iv) Left lung congested and injured
(v) Multiple teeth loss.
Cause of death was “traumatic brain injury with loss of cerebrum due to multiple skull bone fracture with polytrauma”. Accordingly, he issued the post mortem notes as well as the advanced cause of death certificate (Exh.543 and Exh.543A). In his cross examination, he admitted that he is unable to say whether victim sustained injury while driving the car. He further admitted that nothing was suspicious, therefore, he did not preserve viscera and blood sample.
...62/
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81.
Medical Officers P.W.33 Dr. V.P. Kurhade, P.W.34 Dr. S.M. Kondekar, P.W.36 Dr.S.G. Bhopale and P.W.46 Dr. Revati Desai have proved the advanced death certificate as well as post mortem report (Exh.532, 532A, 534, 534A, 538, 538A, 539, 539A, 542, 542A and 578). Opinion of the probable cause of death is given as “shock due to multiple polytrauma in a case of road traffic accident”. Upon perusal of all the post mortem reports, it clearly appears on record that all seven deceased sustained the contused lacerated wounds all over body, neck, thigh, etc.. It also appears that there were damaged to the frontal bone and there is a damage to the brain of all the incumbents in Scorpio. 82.
During the testimonies of medical officers, it is obvious that the cause of death are “haemorrhage shock due to the poly
trauma and there was fracture to the skull”. It is the specific case of the prosecution that due to the heavy impact, skull vault of deceased Suresh Bhagat was opened with multiple skull bone fracture. Whole brain was lost. Both eyes were lost. Thereby, it is obvious that it was the heavy impact and thereby, all the deceased/passengers of Scorpio sustained the fracture to their skull in which they died on the spot. The nature and gravity of the injuries are such that they could not have occurred in normal accident and could have be sustained only if ...63/
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the headon collusion was deliberate. The absence of skid marks clearly shows that there was no attempt by the truck driver to apply the brakes which could have been the case, had it been mere accident. These circumstances clearly shows that it was not a mere headon collusion but it is deliberate and intentional dash given by the truck to the Scorpio. 83.
During the cross examination of investigating officer P.W.71 G.C. Hiremath, defence filed the copy of report of L.C.B., Alibaug, in respect of addition of Section 302, 120B of IPC before C.J.M., Alibaug (Exh.773). Accordingly, permission was granted for addition of provisions of Section 302, 120B of Indian Penal Code. The injuries mentioned on the body of deceased Tushar Shah, driver of Scorpio, clearly shows that he sustained multiple injuries, whereas accused no.1 Pravin Shetty, who as would be shown little later, was truck driver sustained the minor injury on his nose and forehead. This would not have been the case unless the truck driver deliberately dashed with great force to Scorpio. The injuries sustained by Suresh Bhagat, Tushar Shah and others were not only grievous but there was damaged to their skull and brains were ruptured or pierced from the skull. This also rules out theory of mere accident. ...64/
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84.
In further cross examination of IO G.C. Hiremath, defence was taken that the spot of incident is of heavy traffic as well as accident prone. To prove their contention, they filed the extract of the R.T. Information accidents during the period from January 2005 to March 2009 between Wadkhal Naka to Poynad Road (Exh.738). The suggestive information cannot override positive and conclusive circumstantial evidence ruling out the accident.
85.
The defence that there was a slope where the incident took place, in fact shows that the incident could not be accident. That is so because Scorpio which was going from ascending direction could not ply fast, whereas the truck coming from the opposite direction could be in control of the situation, coupled with the fact that the driver of the truck was continuously chasing over the phone the position of Scorpio. It is evident that he deliberately dashed Scorpio instead of keeping his vehicle in control which would have been the case for avoiding the accident. 86.
The advocates for the accused raised the objection that the viscera of the deceased were not preserved and not examined by the prosecution. During the cross examination, medical officers have given specific reply as to why viscera was not preserved viz. there ...65/
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was no smelling of alcohol. Therefore, the objection raised by the Advocate for the accused has no substance and the same is not maintainable.
INJURIES TO ACCD.NO.1 DRIVER
87.
It has come in the evidence of P.W.22 Dr. Smt. S.K. Desai, who was attached to Vibha Care Home and examined the accused no.1 driver Pravin Shetty, on 13/6/2008, at about 11.10 p.m.. When she asked the reason of injury, he told that while unloading the articles from the truck, he sustained injury by the shutter of the truck. He was advised to admit in the hospital, but, he refused. She gave first aid to accused no.1, as the accused refused to admit. Thereby, she obtained the signatures of P.W.62 Ajimuddin Shaikh & P.W.77 Antony Raj Nannya Dravid, who were accompanied with him. Prosecution has filed the said medical papers (Exh.471) on record. 88.
Upon perusal of medical papers of Vibha Care Home (Exh.471), Dr. S.K. Desai clearly mentioned the history of injury i.e. put on the nose by truck shutter and had an injury on head. She also mentioned that it is contused lacerated wound superficial to deep nose (including both alacnasi and nasal septum admeasuring 8 x 8 cm.) She also found abrasion over the frontal region 1 x 1 cm. ...66/
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89.
The defence of the accused is of total denial as well as not found any injury on his person. Whereas, the arrest panchanama/ surrender form (Exh.496) clearly shows that he sustained horizontal injury on his nose and there is abrasion over his forehead and the nose. Thereby, the defence which has been raised by the accused has no substance. On the contrary, it supports the prosecution case that at the time of the incident, accused no.1 Pravin Shetty also sustained the injury on his nose and forehead. Thereby, he was examined by P.W.22 Dr.S.K.Desai. By examining P.W.22 Dr. S.K. Desai, prosecution proved the medical papers/injury certificates (Exh.471).
90.
P.W.62 Ajimuddin Shaikh (approver) admitted that he and P.W.77 Anthony Raj Nanya Dravid forwarded accused no.1 Pravin Shetty to the hospital. Doctor gave the first aid treatment and advised to admit in the hospital but they refused. They got writing from Anthony that they are not ready to admit him and they are leaving the hospital on their own risk. He admitted the said remarks on Exh.471 as well as his signature and signature of Anthony Raj Nanya Dravid with their mobile numbers. The mobile numbers of P.W.62 Ajimuddin Shaikh is mentioned as 9324260303. Whereas the signature of Anthony and his mobile number is mentioned as 9833110177. ...67/
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91.
It has come in the evidence of P.W.77 Anthony Raj Nannya Dravid that his mobile number is 9833110177. He did not support the prosecution. During his cross examination by learned Spl.P.P., he submitted that he did not know Ajimuddin Shaikh. He denied that he had taken accused no.1 to the hospital i.e. Vibha Care Home. When his prepaid application form (X61) is shown to him, he admitted copy of his passport as well as his signature on exhibit. Thereby, it is exhibited as Exh.757. Xerox copy of his passport and the signature thereon is admitted by him which is exhibited at Exh.758. When I compared the signature and the handwriting on Exh.471 as well as Exh.757, Exh.758, I found them closely similar. Whereas P.W.62 Ajimuddin admitted his signature on Exh.471. Thereby, prosecution successfully proved that Anthony and Ajimuddin forwarded the accused no.1 Pravin Shetty to Vibha Care Home for his medical treatment immediately after the incident, but they refused to admit for further treatment. Thus, it is obvious that at the time of the incident, accused no.1 Pravin Shetty also sustained injury on his nose as well as abrasion injury on his forehead. 92.
P.W.24 Daulat Bade, who was working as waiter in Hotel Sai Kutir at Wadkhalnaka, stated that on the day of the incident, accused no.1 Pravin Shetty had been to their Hotel having sustained ...68/
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injuries to his nose. Thereby, he put the scarf/handkerchief on his mouth. Blood was oozing from his nose. One phone call was received and thereby, he handed over the call to the accused Pravin Shetty. 93.
P.W.25 N.T. Mhatre, Manager of Hotel Sai Kutir deposed that at about 2.30 p.m., one person came to Hotel and made a phone call from P.C.O..The person, who came to the Hotel tied handkerchief to his nose and thereby due to curiosity, he asked him as to what happened and thereby, he replied that somebody beat him by tommy and he has to inform to his employer. During the cross examination of both the witnesses, their testimonies remains unshaken. Thereby, the testimony of P.W.22 Dr. S.K. Desai, P.W.24 Daulat Bade and P.W.25 N.T. Mhatre is corroborate to the prosecution case as well as in respect of the injury sustained by accused no.1 Pravin Shetty. Thereby, it has brought on record that on the day of the incident, accused no.1 Pravin Shetty also sustained injury to his nose as well as to the forehead. The aforesaid evidence unflinchingly establishes that accused no.1 Pravin Shetty was driving the truck. I have already discussed that the accused had deliberately dashed with tremendous force to Scorpio with intention to kill deceased Suresh Bhagat and the incumbents in Scorpio. In other words, theory of 'simple accident' is totally not acceptable and ruled out.
...69/
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94.
During the arguments, Advocates for the accused raised the objection that the investigation is faulty, as it has come in the cross examination of P.W.06 ASI More that statements of 5 to 6 persons may have recorded, who has seen the incident. Mere admission by the police officer who did not carry out the investigation, does not mean that at the relevant time, eye witnesses were available on spot and that their statements were recorded. It is to be noted here that spot of incident is of traffic. It has come on the record that accused no.1 Pravin Shetty made the call at about 2.30 p.m. from P.C.O. and he was present there upto 5.00 p.m.. The accused was there for 2½ hrs. and was waiting until he receives the return call. The return call are seldom received at P.C.O.. The witnesses had glimpses of the accused. They had ample time and opportunity to store in their mind the identity of the accused. They identified the accused immediately after the incident in the police station as well as before the Court. From these circumstances the identification by the witnesses even without test identification parade can safely be relied. Thereby, the inference sought to be drawn by the defence for non examination of eye witnesses and identification parade is misconceived.
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95.
(a) Learned Senior Advocate Shri Aadhik Shirodkar placed reliance on :
(i) Syad Akbar v/s. State of Karnataka, (1980) 1 SCC 30, in which principle regarding the application of maxim “Res ipsa loquitur”, (ii) Ishwar Singh v/s. State of U.P., (1976) 4 SCC 355, in which it has been held, “There is no explanation why the others were not examined. Of course, nonexamination of some witnesses would not matter if the witnesses examined unfolded the prosecution case fully. But it is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined. Nonexamination of these witnesses acquires a special significance in view of the material discrepancy between F.I.R. and the version of the occurrence given by the prosecution in court.”
(b)
Learned Advocate Shri Vilas Naik placed reliance on:
(i) State of M.P. V/s. Kailash, I (2005) DMC 124, in which it has been held, “non filing of statements of the eye witnesses when they are already recorded amounts to a faulty investigation by the I.O. was not only negligent but has also willfully suppress the documents in order to bring false case against the accused”. ...71/
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(ii)
Piginaraji Ranga Rao V/s. State of A.P., 2009 CRI. L.J. 3699, in which it has been held, “no test identification parade had been conducted to establish the identity of the accused in such case accused entitle for acquittal.” (c) Learned Advocate Shri Rasal placed reliance on :
(i)
Awadhesh and anr. V/s. State of Madhya Pradesh, AIR 1998 S.C. 1158, in which it has been held, “place of occurrence is a busy public place where District Magistrate, Supdt. of police etc. reaching the spot in few minutes after the occurrence. Neither of them or any independent witness examined by the prosecution. Thereby the prosecution case is doubtful and conviction of accused is improper.”
(ii)
Kanan & Ors. V/s. State of Kerala, AIR 1979 S.C. 1127,
(iii) Shaikh Umar & Anr. V/s. State of Maharashtra, AIR 1998 S.C. 1922 (iv) State of Maharashtra V/s. Sukhdeo Singh alias Sukha and Ors., AIR 1992 S.C. 2100 (v)
Thankayyan V/s. State of Kerala, 1994 S.C.C.(cri) 1751, in which it has been held, “belated identification in Court its validity and when accused already shown to witness and later on identification parade was carried out is meaningless.” ...72/
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I have gone through the principles laid down in the above cited rulings. The principles of the law in respect of “Res ipsa loquitur”, non examination of eye witnesses as well as on the point of test identification parade are settled. The principles however, laid down in the above cited rulings is not helpful to the accused as the facts are not similar to the case in hand. In fact, the principle of “Res ipsa loquitur” which means things speaks for themselves, goes against the accused and helps the prosecution.
EVIDENCE OF P.W.02 ADV. SOMET SHIRSAT & PRIVILEGE COMMUNICATION
96.
It has come in the evidence of P.W.02 Advocate Somet Shirsat that he was junior of Advocate Raju Sawant, who filed vakalatnama on behalf of accused no.8, in Alibaug Sessions Court in N.D.P.S. Case no.2/2007. He further submitted that accused no.8 Hitesh Bhagat, his father deceased Suresh Bhagat and other five were accused in the said proceeding. Prior to the date of the hearing, mother of the accused Jaya Chheda used to inform him whether accused no.8 Hitesh will attend the court or not and if absent, he used to file the exemption applications informing the Court. On 15/5/2008, said case was fixed. Advocate Somet Shirsat sent SMS to Hitesh in response to which Hitesh informed by SMS that he is ...73/
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hospitalized. Thereby, on 15/5/2008, he informed his colleague Advocate Mahesh to file exemption application on behalf of accused Hitesh. On 13/6/2008, he went to Sessions Court, Alibaug. He filed an exemption application (Exh.358) on behalf of accused no.8 Hitesh. At about 10.30 a.m., he received the call from accused Suhas Roge and made inquiry about his attendance in the court. Again at 12:45 p.m., accused Suhas Roge called him and made inquiry regarding the accused, who were present and the status of the matter. To which he informed about the grant of exemption application on behalf of Hitesh as well as rejection of discharge application. His testimony is corroborate by his statement (Exh.359), which was recorded by learned Metropolitan Magistrate, 23rd Court, Esplanade.
97.
Learned Senior Advocate Shri Adhik Shirodkar as well as all the learned defence Advocates raised the objection that as per the provisions of Section 126 of Evidence Act, communication between the advocate and his client is privileged communication. As such, the testimony of P.W.02 Somet Shirsat is within the ambit of Section 126 of Evidence Act and has no evidentiary value, as he has not obtained, express or implied consent from his client i.e. accused no.8 Hitesh.
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98.
The provisions of Section 126 of Evidence Act reads thus :
S.126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to this client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure
(1) any such communication made in furtherance of any illegal purpose ;
(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
“No barristers, attorney, pleader or vakil shall any time be permitted to :
(1) disclose (i) any communication made to him by or on behalf of his client or (ii) any advice given by him to his client in the course and for the purpose of his employment; (2) to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.
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The section does not protect from disclosure
(1) any communication made in furtherance of any illegal purpose ;
(2) any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement.”
Privilege
communication
means
confidential communication passing between the client and his legal advisor and made for the purpose of obtaining or giving legal advise. It is the settled principle of law that the communication made in furtherance of criminal purpose is not protected from disclosure. That apart the communication by the client with Advocate about adjournments cannot be said to be professional or legal advise and therefore, is not privileged communication in the eye of law. Moreover, communication cannot be said to be privileged as against accused Suhas Roge, since he was not client of P.W.02 Adv. Somet Shirsat. In fact not concerned with criminal case. The undue and detail inquiry by the said Advocate over the phone about the status of matter clearly shows that accused Suhas Roge was party to the conspiracy and was directly connected with planning of carrying out the murder. 99.
Learned Counsel Shri S.R. Pasbola and Learned Advocate Shri Vilas Naik placed reliance on :
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(i) Mandesan V/s. State of Kerala, 1995 CRI. L.J. 61,
in this case it has been held, “communication between the accused and his advocate is not admissible in evidence. Mere failure on part of the accused/client to claim privilege does not melt down the principle of waiver”. (ii) K. Ponnammal V/s. A. Loganathan,
LAWS(MAD)20097311, in which it has been held, “privilege communication is mandate as well as protection to the client. Therefore advocate is can not permitted to give the evidence in Civil suit.”
The principle laid down in above cited rulings is not helpful to the defence as P.W.02 Advocate Somet Shirsat has never disclosed any professional communication.
100.
Learned Special P.P. placed reliance on :
(i) S. Anthony v/s. G.S. Naidu, 1967 Cri.L.J. 1527 in which it is held, “Privilege is intended only to protect interest of client in respect of any action or prosecution for any prior act or offence. Privilege is not intended for committing any offence”. ...77/
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(ii)
K.C. Sonrexa v/s. State of Uttar Pradesh,
1963(1) Cri.L.J. 38, in which it is held, “Privilege could be claimed only by those clients who have already completed the crime and seek legal advice for defence but it is not open to those who commit subsequent crimes which may be described as future wrong doing”. These principles are applicable to the case in hand as the facts are in respect of filing of exemption and had instructions of his client does not mean that it has come within the ambit of privilege communication. At the same time, Advocate Somet Shirsat did not disclose any confidentiality of the case. Thereby, the objection raised by the Advocates for the Accused has no substance. APPROVER
101.
It has come in the evidence of P.W.05 Approver Kiran Raghu Pujari that after the grant of pardon, Chief Metropolitan Magistrate recorded his statement. While recording the statement, he elaborately states about his business, raids by joining the hands with one Pradeep Rugane claimed to be influential person. At the instigation of Pradeep Rugane, he made phone call on residential phone number of deceased Suresh Bhagat, which was attended by Krishna Bhagat, wife of accused Hitesh Bhagat, over the phone. ...78/
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P.W.05 Kiran Pujari asked Krishna Bhagat to call back. On 2 nd day, accused Hitesh Bhagat made the call and agreed to meet at Hotel Taj at Colaba. Accused Hitesh Bhagat, Jaya Chheda, Suhas Roge came to meet him. Pradeep Rugane and Ashish Bhosale were also present. In that meeting, accused Hitesh Bhagat paid him Rs.1 lakh. On the next day, Suhas Roge called P.W.05 Kiran Pujari at the house of Jaya Chheda at Pant Nagar, Ghatkopar. At the relevant time, Jaya Chheda, Hitesh Bhagat and Suhas Roge were present. They told him that accused Hitesh Bhagat and Suresh Bhagat were not looking mataka business properly. Later on, Suhas Roge came to P.W.05 at his Airoli office for informing about Suresh Bhagat's mataka business and told him to arrange the raid with the help of police. At his instigation, police conducted the raid operation at Lonawala office as well as office situated at Vashi. Thereby, Jaya Chheda and Hitesh Bhagat paid him the amounts as well as the gifts and the same is continued from time to time. From accused Suhas Roge and Jaya Chheda he gathered the information of whereabouts of deceased Suresh Bhagat and communicated to the police when he was wanted in various cases. 102.
It has further come in his evidence that, when deceased Suresh Bhagat filed Writ Petition before Hon'ble High Court against them. Thereby, Suhas Roge called him at the house of Jaya Chheda. ...79/
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Accordingly, they appeared before the office of Detection Crime Branch, Unit VII and their statements were recorded. Thereafter, they went to the house of Jaya Chheda. At the relevant time, Jaya Chheda told them that Suresh Bhagat had finished the mataka business. Accused Suhas Roge told that he will ensure permanent solution for Suresh Bhagat. At that time, Jaya Chheda told that “Tumhi nusate bolta, hatat bangadya ghalun ghari basa”. Suhas Roge stated that “he will eliminate Suresh Bhagat by fake accident while coming from Alibaug Court, but accused Hitesh Bhagat shall not remain present at Alibaug Court”. Thereby, Jaya Chheda told that “Tumhi fakt bolta, kahi karat nahi” . Then accused Suhas Roge asked him for the help, if any problem arise. He said “yes” and he went to his house.
103.
It has further come in the evidence of P.W.05 Approver Kiran Raghu Pujari that on 13/6/2008, at about 2.30 to 3.00 p.m., when he was proceeding to Mantralaya, he received phone call from Suhas Roge. He insisted him to meet urgently. Then he met Suhas Roge near Rani Baug, Byculla, within 10 to 15 minutes. He sat in Maruti van of Suhas Roge and one man sitting in Maruti van of Roge was shifted to the car of P.W.05 Kiran Pujari. P.W.05 Kiran Pujari and accused Suhas Roge proceeded in Suhas Roge's van towards ...80/
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Mantralaya. At that time, Suhas Roge informed him that Suresh Bhagat died in the accident by dash of the truck while returning from Alibaug Court. Upon which he asked him whether really he had done so. He replied affirmatively. Accused Suhas Roge further stated that now he and Jaya Chheda can sleep happily. He also told that accused Hitesh Bhagat is sent abroad. Suhas Roge asked him the help,if any. When they reached near Hutatma Chowk, again he sat in his own car and the person from his car went along with Suhas Roge. In the evening,he saw the news that Suresh Bhagat died. After hearing the news, he got frightened and thereby, he avoided to meet Suhas Roge.
104.
During his cross examination, he admitted that all his previous bail applications were filed as per his instructions and in those applications, he claimed to be an innocent. He admitted that he had not received any money from Suresh Bhagat, but received the amount from Hitesh Bhagat, Suhas Roge and Jaya Chheda. He admitted that in his pardon application word “if” suggesting that conditional pardon and sought is wrongly mentioned by him and the said application is in his handwriting.
105.
In his cross examination, he admitted the discussion between accused Suhas Roge and Jaya Chheda that he will see ...81/
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permanent solution for Suresh Bhagat and accused Jaya Chheda states that “Tumhi nusate bolta, hatat bangadya ghalun ghari basa”. Instead of denial, he reiterate the talks between the accused no.4 Suhas Roge and accused no.7 Jaya Chheda. Thereby, he supports the prosecution case. 106.
It was the defence of the accused that P.W.05 approver Kiran Pujari is an extortionist, blackmailer and not reliable. Thereby, he was cross examined on the point of the documents found in his possession. To which he admitted the insurance policy (Exh.395) and PUC certificate (Exh.396), his visiting card which embossed with national emblem (Exh.397), identity card (Exh.398), government receipt for the use of revolver (Exh.399), office copy of letter to permission to carry revolver (Exh.400), permission for revolver (Exh.401), xerox copies of letter MLA Sanjay Dina Patil (Exh.402), service book of the card bearing no.MH43M4030 (Exh.403) as well as affidavit of one Gayasuddin as well as Yunus Khan (Exh.404 and Exh.405). He further admitted that he was receiving black money by blackmailing others.
107.
It has further come in the cross examination of approver P.W.05 Kiran Pujari that Pandurang Patil is the father of his friend ...82/
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Amit Patil and phone no.9870557511 is in the name of Pandurang Patil. Amit Patil is his childhood friend. He used the said mobile for the safety and also for his privacy. He further admits that he used to provide information to the police, Rationing Authorities, Corporation and to the Ministers as well as he used to receive the amount from the police as a informer. He further admitted that on 12/7/2008, he handed over Rs.4 lakhs wrapped in saree from cupboard in his house. He further admits the receipt of Rs.1 lakh for providing information regarding Lonawala raid. During his cross examination, his testimony remained unshaken. His statement (Exh.340) was recorded by the Chief Metropolitan Magistrate corroborates the testimony. Extra judicial confession of accused Suhas Roge as well as reprimand by accused Jaya Chheda has also come in the evidence of P.W.05 Kiran Pujari. At the relevant time, accused Suhas Roge declared his intention to eliminate Suresh Bhagat and asking the help from Kiran Pujari to which he shown his readiness. Accordingly, on the day of the incident, accused Suhas Roge informed him about the place of death of Suresh Bhagat while returning from Alibaug to which P.W.05 Kiran Pujari shown readiness to help them, which shows his involvement in the conspiracy of commission of murder for valuable consideration. In view of the above defence that P.W.05's evidence is only exculpatory is devoid of merits.
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108.
P.W.20 Rahul Kurtadkar deposed that approver Kiran Pujari is his friend since his childhood. He served with him as his driver. Prior to one year, he left the said job. He used to go with Kiran Pujari at Nashik, Pune, etc.. He used to go to the house of accused Jaya Chheda at Ghatkopar. He also travelled with her for Daman, Gujarat. He is also knowing accused Suhas Roge because of Kiran Pujari. On 13/6/2008, at about 11.00 a.m., he received phone call from accused Kiran Pujari and called him to proceed to Mumbai. As per their discussion, he stood near Airoli bridge. Kiran Pujari came there in his Verna Car. He took the charge of steering of the said car. When they reached near Rani Baug, Kiran Pujari received phone call, where because he parked his vehicle by the side of the road. After 5 to 7 minutes, one Maruti car came there and parked behind their car. One person from Maruti car came in their car and Kiran Pujari sat in Maruti car. While changing the seat, Kiran Pujari directed him to follow Maruti car. Accordingly, he followed Maruti car and reached near Fountain. Thereafter, Kiran Pujari came back in Verna car and the person sat in his car went to sit in Maruti car. At the relevant time, Suhas Roge was driving the said Maruti car. Thereafter, they proceeded towards Mantralaya. After 23 hrs., they came back. He was having mobile bearing no.9224588912. Accordingly, police recorded his statement.
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109.
In his cross examination by Advocate Pasbola for accused no.7, P.W.20 Rahul Kurtadkar admitted that approver Kiran Pujari is his master as well as friend, therefore, he is helping him in each kind of work including carrying his tiffin to jail. He never stated the name of the person who sat in their car from Maruti car because he was unknown to him. In his cross examination also he admitted that on 13/6/2008, he and Kiran Pujari went to Rani Baug. He is unable to say the date when he went to Gujarat with Jaya Chheda with Kiran Pujari. But he had taken them in Skoda car. He further admitted that after 23 days, he came to know that Kiran Pujari was arrested. Despite of his detailed cross examination, his testimony remained unshaken. By examining P.W.20 Rahul Kurtadkar, prosecution proved that on the day of the incident, Kiran Pujari reached Rani Baug at the instance of accused Suhas Roge. It has also come on the record that when they reached near Rani Baug, approver accused Kiran Pujari sat in Maruti car of accused Suhas Roge and another person from his car sat in the car of Kiran Pujari, which was driving by P.W.20 Rahul Kurtadkar and subsequently they changed the position near Fountain. The circumstance clearly shows that on the day of the incident, there was a meeting between accused Suhas Roge and approver Kiran Pujari from Rani Baug to Fountain, at about ...85/
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2.30 to 3.00 p.m.. Their involvement in the crime is thus clear from the evidence. 110.
Approver P.W.62 Ajimuddin Shaikh states that accused Harish Mandvikar was his colleague, when they were working with 'Jay Electricals'. He used to give the truck to Harish Mandvikar and others on occasion of Ganpati and Dahi Handi. He also got acquainted with Raju, Ganya, Santosh and Balan as they used to take the part in Dahi Handi. Anand Vishram Patil is his partner in the business, since the year 2003. In the year 2005, they purchased truck in question bearing no.MH04CA4445. In the second week of May 2008, accused Harish Mandvikar called him on phone and made inquiry about the truck/dumper. He demanded the dumper but he shown inability on account of driver. Thereby, Harish Mandvikar stated that he will arrange the driver. When he asked the reason, he replied that one persons' hands and legs are to be broken. He denied to hand over the truck. By that time, accused no.1 driver Pravin Shetty came to take the truck. P.W.62 Ajimuddin asked him whether they really needed the truck to break the hands and legs of any person. Accused no.1 Pravin Shetty denied the same and assured him to keep faith. Thereby, on previous date, at about 9.10 a.m., he took the truck and return in the evening.
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111.
Approver P.W.62 Ajimuddin Shaikh further deposed that on 13/6/2008, at about 10.00 a.m., he received the phone call from accused Harish Mandvikar to hand over the truck to accused Pravin Shetty. In the meanwhile, accused Pravin Shetty came on the motorbike with Ganesh Rane to take the truck. When he refused to hand over, he assured that nothing untoward will happen. He took the photocopy of his driving license and handed over the truck. When P.W.62 Ajimuddin asked the reason for requirement of truck, he replied that they are bringing the machine from Chiplun on hire. Accordingly, he also informed Anand Patil. Later on, at about 2.00 p.m., accused Harish Mandivkar informed him that truck met with an accident on AlibaugPen Road. When he asked about the injury to anybody, he replied that seven persons were killed. Thereby, he got annoyed, accused Harish Mandvikar replied that not to worry and he will take care of all the losses. He also told him that he was saying of killing of one person, whereas he killed seven persons. 112.
P.W.62 Ajimuddin further deposed that on 13/6/2008, at about 4.00 p.m., P.W.77 Anthony Raj and P.W.67 Ganesh Rane came to his house with cloth bag containing Rs.10 lakhs, on account of loss caused to him. But he refused to take the same on the ground that ...87/
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instead of one, seven persons were killed by the truck. Police also contacted him on his mobile as the truck met with an accident and driver ran away. He also informed the incident to his partner Anand Patil. When he tried to meet accused Harish Mandvikar at his house, he did not meet. Then he went to the house of accused no.1 driver Pravin Shetty and took him to the hospital in Shastri Nagar, Borivali as he sustained the injuries. In the meantime, P.W.77 Anthony Raj Nannya came to the hospital and talked with the nurse in English and refusing to admit him in the hospital. They both signed the hospital papers and returned to the home. When they returned to the house with accused Pravin Shetty, he informed accused no.1 Pravin that on the next day, they have to go to Alibaug police station. At about 1.45 a.m., police came to his house. When they made inquiry with P.W. 62 Ajimuddin, police went to the house of accused Pravin Shetty, but he was not present in the house. On inquiry with one adjoining boy by name Baban, he told that accused Pravin Shetty was taken by accused Kiran Amle at his house. Therefore, they reached to the house of accused Kiran Amle and brought the accused Pravin Shetty.
113.
In his cross examination, P.W.62 Ajimuddin admitted that he informed the police that he was entangled and falsely implicated ...88/
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in this case. He admitted his mobile no.9324260303 which is displayed on the truck. He does not know P.W.10 Vinayak Pawar, who is the original subscriber of the said mobile. On the contrary, he stated that it was purchased by him from shop in Telli Galli but he failed to state the details. He further admitted that he thought that accused Harish Mandvikar was talking for breaking of someone limbs, but, he was not aware about the killing. He admitted that Magistrate recorded his statement. He denied that accused Pravin Shetty was his employee on monthly salary of Rs.5,000/ and Rs.100/ per day entry license. He admitted that he gave ornaments of 15 tolas and cash of Rs.10 lakhs during the marriage of his daughter. Despite of his detail cross examination of the accused/approver Ajimuddin Shaikh, his testimony remains unshattered.
114.
It is obvious that P.W.62 Ajimuddin is the owner of truck no.MH04CA4445 and he handed over the truck to accused Pravin Shetty at the request of accused Harish Mandvikar. It is also admitted that his mobile no.9324260303 was also displayed on the truck. Anand Vishram Patil is his sleeping partner. It has come on the record that on the day of incident, he informed his partner about the sending of truck to Chiplun to bring the machine and after the accident. It is not that P.W.62 Ajimuddin was routinely informing the ...89/
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movement of the truck to his partner. This shows that he had informed the same only with a view that on police inquiry, his partner Anand Patil tells to the police as per his plan. Thereby, it appears on record that on the day of the incident, he informed the same to his partner, if police made the inquiry with him. His testimony is corroborated by his statement (Exh.657A).
115.
It has also come on the record that immediately after the incident i.e. at 4.00 p.m., accused Harish Mandvikar sent P.W.77 Antony Raj Nannya Dravid and P.W. 67 Ganesh Rane at his house and offered an amount of Rs.10 lakhs and the same has been refused by him. His testimony remains unchallenged and found to be trustworthy.
116.
P.W.07 Anand Patil stated that he is partner of approver P.W.62 Ajimuddin Shaikh in business of truck, which was handled exclusively by P.W.62 Ajimuddin. Since the year 2002, he contributed the amount for purchase of the truck. The truck in question i.e. MH
04CA4445 is owned by him and approver Ajimuddin and the same was handed over to accused Pravin Shetty. It has further come in his evidence that on the day of the incident, approver Ajimuddin ...90/
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informed him about trip of the truck and its hire charges Rs.5000/. His testimony corroborates the version of approver Ajimuddin Shaikh. 117.
Learned Advocate Shri Adhik Shirodkar raised the objection that the testimonies of P.W.05 Kiran Pujari and P.W.62 Ajimuddin Shaikh are exculpatory and do not inculpatory. The testimonies of both these approvers are not corroborate in material particulars and thereby, it cannot be reliable. He placed reliance on :
(i)
Tanviben Pankajkumar Divetia v/s. State of Gujarat,
(1997) 7 SCC 156, in which it has been held : “Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions”.
(ii)
K. Hashim v/s. State of T.N., (2005) 1 SCC 237, in which it has been held : “Section 114 illustration (b) provides that the court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, “may” is not ...91/
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“must” and no decision of court can make it “must”. The court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the court's view as to the credibility of evidence tendered by an accomplice. The rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration, which must be clearly present in the mind of the judge. Therefore, if the evidence of the accomplice is found credible and cogent, the court can record a conviction even on the uncorroborated testimony of an accomplice”.
(iii) Sarwan Singh Rattan Singh v/s. State of Punjab,
1957 Cri.L.J. 1014,
in which it has been held : “approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver”.
(iv)
AlSaleha Beig s/o. Abdul Gani Beig v/s. State & Ors., 2008 ALL MR (Cri) 802, in which it has been held : “no objection by the prosecution for tendering the pardon would not be sufficient. Prosecution should join the request made by the accused for ...92/
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reasons stating as to why pardon is necessary and that the conviction of the other accused is not easy without approver's testimony. Without following the procedure, pardon is granted, accused is entitled to seek the revision and the revision can be entertained”. I have gone through the above cited rulings. The principles laid down in these authorities are established principles of law that if the evidence of accomplice found credible and cogent, court can record a conviction even on uncorroborated testimony of accomplice. The principle cited supra laid down in AlSaleha's case is in respect of revision and therefore, it is not helpful to the defence. Moreover, I have shown that the testimony of P.W.05 Kiran Pujari and P.W.62 Ajimuddin is not exculpatory and their evidence has established their role in the crime. 118.
Learned Advocate Shri S.R. Pasbola placed reliance on following rulings:
(i)
Rampal Pithwa Rahidas & Others V/s. State of Maharashtra, 1994 S.C.C.(Cri.) 851, in which it has been held, “though the approver is a competent witness, his evidence must be corroborated in material particulars by direct and circumstantial evidence. Once the testimony of approver is found to be unworthy of credence it can be rejected outright.”
...93/
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(ii)
Rakesh Kr. Singh V/s. State of Assam, 2003 CRI L.J. 3206, “in this case accused/approver PW6 Shikha Barthakur, sisterinlaw of accused, in her statement never states that her direct or indirect involvement in the crime, thereby her entire statement was exculpatory and she did not incriminate herself in any manner. Thereby it was held that grant of pardon to her is not proper. (iii) Vemireddy Satyanarayan Reddy & Other V/s. State of Hyderabad, 1956 S.C. 379 ((S) AIR V.43,C.67 May), “In this case appellants and others were communist, charged for the murder of one congress worker. They are held guilty on the basis of testimony of accomplice PW14 who witness the incident and accompany with the accused, after a quarrel with his parents. Thereby he cannot be held as a accomplice and his testimony cannot be relied. (iv)
Joga Gola V/s. State of Gujarat, 1982 S.C.C.(Cri.) 141, in which it has been held, “the testimony of the approver is wholly exculpatory and falsely implicating the others cannot be relied.
(v)
Narain Chandra Biswas & Others V/s. Emperor, AIR 1936 Culcutta 101, in which it has been held, “accomplice witness is not concerned with the crime but his participation is limited to the knowledge that crime is to be committed. He cannot be called as a accomplice.”
...94/
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(vi)
Piara Singh V/s. State of Punjab, AIR 1969 S.C. 961, in which it has been held, “an accomplice is undoubtedly a competent witness. His participation in the commission of offence is to be established in material particulars by independent evidence.” (vii) Babuli V/s. State of Orissa, AIR 1974 S.C. 775, in which it is held, “the approver was tendered pardon at a very late stage of the trial, that is after 31 witnesses were examined. The prosecution has laid itself open to the criticism that pardon was tendered to one of the accused at the fagend of the trial in an effort to fill up the lacuna in its case.” I have gone through the above cited rulings. The principles laid down are undisputed. The rulings, however, are inapplicable since on the facts it has been established in this case that, the evidence of approver is incriminating.
119.
Learned Counsel Shri S.R. Pasbola also placed reliance on the value to be given to the testimony of accomplice witness i.e. (a) Krishnalal Naskar and others, etc. V/s. The State, 1982 CRI. L.J. 1305 (b) Rameshwar S/o Kalyan Singh V/s. State of Rajasthan, A.I..R. (39) 1952 S.C. 54, (c) Shamsher Khan V/s. State (NCT of Delhi), AIR 2000 S.C. 3662, (d) Ravinder Singh V/s. State of Haryana, AIR 1975 S.C. 856, (e) Niranjan Singh V/s. State of ...95/
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Punjab, 1996 S.C.C. (Cri) 939, (f) Bhuboni Sahu V/s. The King AIR (36) 1949 Privy Council 257, (g) Khagendra Gahan V/s. The State, 1982 CRI. L.J. 487, (h) Renuka Bai @ Rinku @ Ratan & Anr. V/s. State of Maharashtra, 2006(4) Crimes 46 (SC), (i) Sarvanabhavan and Govindaswamy V/s. State of Madras, 1966 Cri. L.J. 949 (Vol. 72, C.N. 286) = AIR 1966 S.C. 1273 (V 53 C 245), (j) Sarwan Singh Rattan Singh V/s. State of Punjab, AIR 1957 S.C. 637 (V 44, C 95 Oct.), (k) Dagdu and Ors. V/s. State of Maharashtra, AIR 1977 S.C. 1579, (l) The State of Bihar V/s. Basawan Singh, AIR 1958 S.C. 500 (V.45 C. 73), (m) Sheshanna Bhumanna Yadav V/s. State of Maharashtra, AIR 1970 S.C. 1330. The principles laid down in the above cited rulings are undoubtedly settled but do not help the defence as the facts in the present case and cited supra are not similar as discussed earlier. 120.
Learned Counsel Shri S.R. Pasbola also placed reliance on (i)
Ram Narain V/s. State of Rajasthan., AIR 1973 S.C. 1188 = 1973 S.C.C.(Cri.) 545, in which it has been held, “conviction does not become illegal merely because it is based on uncorroborated testimony of an accomplice. The Court should first evaluate the approver's evidence and if the same is found uninspiring and unacceptable then ...96/
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corroboration would be futile and unnecessary.” (ii)
Chonampara Chellappan V/s. State of Kerala, 1979 S.C.C. (Cri) 1029, in which it has been held, “corroboration of evidence of accomplice witness in respect of material particular is only necessary, it should not be tainted. Corroboration is to be proved by the evidence of independent and reliable witnesses.” (iii) Balwant Kaur V/s. Union Territory of Chandigarh,
1988 S.C.C.(Cri.) 1, in which it has been held, “independent corroboration in respect of material particulars of evidence of accomplice needed as a rule of law and practice. Accused could not be convicted solely on the basis of uncorroborated testimony of accomplice and accused entitled to benefit of doubt.”
(iv)
Rameshwar S/o Kalyan Singh V/s. State of Rajasthan,
AIR (39) 1952 S.C. 54, in which it has been held, “corroboration is a rule of necessity to rely on the testimony of accomplice.” (v)
Data Ram & Others V/s. State of Rajasthan, 1977 Cri. L.J. 1428, as well as in ...97/
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(vi)
Bhiva Doulu Patil V/s. State of Maharashtra
AIR 1963 S.C. 599 (V 50 C 93), in which it has been held, “court should not ordinarily convict unless the evidence of the approver is corroborated in material particulars qua the accused and if more than one, qua each accused”.
(vii) Lalchand etc. V/s. State of Haryana, AIR 1984 S.C. 226, in which it has been held, “evidentiary value of the testimony of approver after the laps of 20 months cannot be relied.” I have carefully gone through the above cited rulings. The principles laid down are settled principles of Law. But, they are not helpful to the accused in the present set of circumstances as the facts are different as shown earlier. 121.
Learned Advocate Shri Vilas Naik placed reliance on :
(i)
Suresh Sakharam Nangare V/s. State of Maharashtra,
Criminal Appeal no.1606 of 2008, in which it has been held, “when there is no direct evidence showing the complicity of the appellant/accused and he has been convicted on the sole evidence of approver as to his presence and participation in the crime. It will not be safe to rely on the sole ...98/
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testimony of P.W.7 the approver which lacks corroboration.” (ii)
Sarwan Singh V/s. The State of Punjab,
AIR 1957 SC 637 = 1957 SCR 953, in which it has been held, “the appreciation of approver's evidence has to satisfy the double test i.e. he is reliable witness and his evidence receives sufficient corroboration.” I have gone through the above cited rulings. The principles laid down in the above cited rulings are not applicable to the case in hand as the facts of the case in hand are not similar. 122.
Spl.P.P. Ms. Kalpana Chavan relied on following citations :
(i)
Mrinal Das V/s. State of Tripura, 2011LAWS(SC)966, in which it is held, "the statement of approver inspires confidence including the conspiracy part which gets full support from the narration of the occurrence given by the eye witnesses more particularly as to the deployment of some of the offenders for reporting to others about the movement of the victim hence there is nothing wrong in accepting his entire statement."
...99/
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123.
Learned Senior Advocate Shri Adhik Shirodkar, Advocate Shri S.R. Pasbola and Spl.P.P. Ms. Kalpana Chavan placed reliance on :
(i)
Suresh Chandra Bahri v/s. State of Bihar, 1995 Supp (1) SCC 80
1995 SCC (Cri) 60 = AIR 1994 S.C. 2420 in which it has been held “corroboration in material particulars as well as its nature, extent and credibility is necessary. At the same time approver must satisfy the double test of reliability/credibility and corroboration in material particulars to prove the conspiracy as well as ingredients of the commission of the crime. While appreciating the evidence Court should be slow to depart from the rule of prudence.
As per section 306(4) of Code of Criminal Procedure that approver shall not be set at liberty during the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. Section 306(4) clause (b) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any effect on the validity of the pardon once ...100/
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validly granted to an approver”. “The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement.” “The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence”.
Considering the principles laid down in the cited supra it has been held that release of an approver on bail may be illegal but it does not affect the validity of grant of pardon. But the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. Thereby, the principles are very much helpful to the prosecution than the defence. ...101/
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124.
The evidence of P.W.05 Kiran Pujari is in respect of conspiracy between the accused Suhas Roge, Jaya Chheda as well as Hitesh Bhagat by joining the hands with Harish Mandvikar as well as others. His testimony is corroborated by his statement (Exh.340) in material particulars and the same remained unshatter during his detail cross examination. The testimony of P.W.62 Ajimuddin Shaikh is in respect of the conspiracy between accused Harish Mandvikar, Kiran Amle and accused no.1 Pravin Shetty, driver. His evidence is also found to be cogent, reliable and in consonance with his statement (Exh.657A) recorded by the Ld. Chief Metropolitan Magistrate. The evidence of both these approvers is found to be credible and cogent coupled with the evidence filed on record by the prosecution, though they were examined at belated stage. EXTRA JUDICIAL CONFESSION BY ACCUSED NO.4 SUHAS ROGE:
125.
The evidence of P.W.15 Vinod Madan Naik, P.W.16 Joseph Robert Rodrigues and P.W.68 Sanjay Ramchandra Shirke, are on the point of extra judicial confession of the accused no.4 Suhas Roge. It has come in the evidence of P.W.16 Joseph Rodrigues that since 1981, he is residing at Malbar Hill with his sister and working as a car mechanic as well as doing a job of driver. He met the accused Suhas Roge in Hanging Garden at Ashram of Gagangiri Maharaj. Thereby, ...102/
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he was acquainted with accused Suhas Roge and their friendship grew. When accused Suhas Roge asked him for help, he also shown his willingness to cooperate. Accused Suhas Roge told him that he is bodyguard of Suresh Bhagat (Mataka king) and the accused Jaya Chheda is the wife of Suresh Bhagat. He stated that he went to the house of accused Jaya Chheda with accused Suhas Roge for 6 to 7 times. He found that there was enmity between accused Suhas Roge and Suresh Bhagat on account of control of mataka business. Thereby, accused no.4 was removed by Suresh Bhagat as a bodyguard.
126.
It has further come in the evidence of P.W.16 Joseph Rodrigues that accused Suhas Roge, Jaya Chheda, Kiran Pujari and Hitesh Bhagat were intending to take over the mataka business of Suresh Bhagat, as he over heard the said conversation, when he was driving their vehicle. Though accused Hitesh Bhagat was residing at Worli, he used to come at the house of Jaya Chheda at Ghatkopar. He also used to leave Kiran Pujari at Mulund. At one time, when he was proceeding to Khandala, he heard the conversation with Kiran Pujari in respect of raid by Narcotic Unit in the house as well as office of Suresh Bhagat. Kiran Pujari was with him and he was talking with somebody and suggesting to take the search of the opium on the ...103/
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kitchen's platform. Thereby, he came to know that opium was found at the house of accused Suresh Bhagat. After 23 days, when he was also driving the vehicle of Suhas Roge, when they were proceeding towards Ghatkopar, Kiran Pujari informed him that Suresh Bhagat was arrested in opium case.
127.
It has further come in his evidence that after 1 or 1 ½ years, accused Suhas Roge called him at Hanging Garden and introduced Harish Mandvikar, who is a 'Bhai', residing at Kandivali, Borsapada. After 10 to 15 days, Kiran Pujari, Suhas Roge, Harish Mandvikar reached the house of Jaya Chheda. Thereafter, for about one hour, accused Suhas Roge and Kiran Pujari sat in the car stationed near one canteen for tea. At the relevant time, he overheard the talks about eliminating Suresh Bhagat.
128.
It has further come in his evidence that in the year 2008, in the evening, he got phone call from accused Suhas Roge and called him at the house of Sanjay Shirke at Tin Batti area. Where P.W.15 Vinod Naik was also present. Sanjay Shirke went to bring the drinks. They were watching the news of the said accident on T.V. At the relevant time, accused Suhas Roge told that he had caused the so called incident of accident with the help of accused Harish ...104/
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Mandvikar. He stated as “ye maine Harish Mandvikar ko supari dekar karvaya” (I have done it by giving contract to Harish Mandvikar). After hearing, he got frightened and proceeded to the house. On the next day, at about 6 a.m., he received the phone call from Suhas Roge to come with the vehicle at about 7 a.m, as he was standing at Chandralok Building. Thereafter, they proceeded to Bhayender. Accused Suhas Roge called Harish Mandvikar. Then they took tea and thereafter, Suhas Roge asked him to bring the bag from TATA Sumo. While carrying the bag, he opened the chain and saw the bundles of currency notes of Rs.1000/ denomination. He handed over it to the accused Harish Mandvikar. Thereafter, they proceeded towards Ghatkopar and Harish Mandvikar proceeded towards Mulund. At the same time, Kiran Pujari was awaiting at Mulund check naka with his vehicle. Accused Suhas Roge sat in the vehicle of Kiran Pujari and directed him to follow them for about 1 km.. Thereafter, accused Suhas Roge left the car and sat in his car and proceeded towards Walkeshar. After 45 days i.e. after the arrest of accused Suhas Roge, P.W. 16 Joseph Rodrigues received the phone call from one lady to leave Mumbai, otherwise threatened to eliminate him. Therefore, he went to Ajmer (Rajasthan) and then to Kolhapur. Thereafter, he received the phone call from his wife that police were calling him. Thereby, on 1/11/2009, he returned to ...105/
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Mumbai and on 4/11/2009, appeared before ACP Duraphe. On 9/11/2009, he went to Magistrate Court and gave the statement before the Magistrate. 129.
In his cross examination, P.W.16 Joseph Rodrigues admitted that he is residing in Parvati Nagar hutment area which is owned by the customs/collector. His wife is handicapped. He returned to Mumbai after 17 months of the incident of threats. In his cross examination, he also admitted that he prosecuted in the year 2007 u/s. 365, 342, 323, 504, 506 r/w. 34 of Indian Penal Code in which Sanjay Shirke was coaccused, for kidnapping and beating the girl and her friend. Said matter was compromised. He further admitted that he saw the news of the death of Suresh Bhagat on T.V. on 13/6/2008. He heard the conversation of killing of Suresh Bhagat in the month of January and February 2008. From that time till watching T.V., he did not hear anything about the said conspiracy. He is acquainted with Vinod as well as Sanjay Shirke as their families are in visiting terms. After hearing the news, he came to know that it was an incident of murder and thereby, he was surprised. But he did not disclose the said fact to anybody. ...106/
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130.
In his further cross examination, he admitted that he is acquainted with the employee/driver of the accused as he was calling him for their meetings. He heard the conversation of taking over mataka business in the year 200506. He also admitted that it was his feeling that he came to know that Suhas Roge falsely implicated Suresh Bhagat in opium case and it was his case that Suhas Roge, Jaya Chheda, Kiran Pujari and Hitesh Bhagat were cheating. He also admitted the conversation between Kiran Pujari and Suhas Roge while taking tea about the elimination of Suresh Bhagat by accused and thereby, he felt that Suhas Roge and Kiran Pujari are dangerous persons and it would be better to disassociate from them. Despite of that, he visited the house of Sanjay Shirke on the day of the incident as he was called. All these admissions in the cross examination do not falsify the witness and on the other hand amount to admission even by the defence. Such type of the admissions were given by P.W.16 in his cross examination when he was cross examined by Advocate for accused no.3 and Advocate for accused no.7. All these admissions do not anyway derogate the testimony of witness. The conduct of the witness appears to be natural. Thereby, it is obvious that instead of destroying his examinationinchief, defence has strengthened his testimony to corroborate his statement (Exh.883). ...107/
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131.
It has come in the evidence of P.W.15 Vinod Madan Naik that he is knowing the accused Suhas Roge when he was working in Sahitya Sangh Mandir as electrician and doorkeeper. He is also knowing the accused Suhas Roge as his brother was looking after the pan shop of his maternal aunt's son. He used to work with accused Suhas Roge in Ashram of Gagangiri Maharaj as electrician. He is having mobile no.9969504899 which was given by accused Suhas Roge. On 12/6/2008, accused Suhas Roge called him with chisel and hammer and to burn the magic dolls as guided by the enchanter (mantrik). On the next day i.e. 13/6/2008, he went to the house of accused Suhas Roge and then proceeded to the house of Jayabhabhi (accused Jaya Chheda) at Ghatkopar. He used to visit her house various times. At about 6.30 p.m., she handed over two bags wrapped in the newspaper in plastic carry bag. Accused Suhas Roge paid Rs.1000/ and informed him to proceed towards 'McDonald' at Borivali, by taxi. At about 7.30 p.m., he reached and stood there. One boy came there and asked him whether he came there as per direction of accused Suhas Roge. The person told that whether he is Gotya and asked P.W.15 Vinod Naik to make phone call to Suhas Roge. Upon confirmation over the phone from accused Suhas Roge, he handed over the carry bag to Gotya, as per earlier instructions. Thereafter, he returned to Ashram at 10.30 p.m..
...108/
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132.
P.W.15 Vinod Madan Naik further states that at about 10.30 p.m., Sanjay Shirke and accused Suhas Roge came there. Then they proceeded to the house of Sanjay Shirke where they consumed liquor. While watching news on T.V. channel that mataka king Suresh Bhagat along with seven persons died in the accident. Accused Suhas Roge told that “Amhi aamchya dushmanala khalas kele” (We eliminated our enemy). Thereafter, at 2.30 a.m., accused Suhas Roge proceeded to his house and he came to Ashram. On the next day i.e. on 15/6/2008, he went to Khandeshwar with accused Suhas Roge and his wife Nainabhabhi. While returning, accused asked his wife to go to the home and they both proceeded towards the house of accused no.7 Jaya Chheda. After 5 to 6 days, he learnt that accused no.4 has been arrested in the case of murder of Suresh Bhagat. He admitted the correctness of his statement recorded by the Magistrate dated 20/9/2008 (Exh.444). It is to be noted that this is practically not denied to the above testimony of the witness. 133.
During his cross examination, he admitted that the incident of handing over the bundles to Gotya took place on 13/6/2008. But he never disclosed the said fact to anybody till recording of his statement. He used to take liquor if anybody serves. ...109/
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On that day, he did not drink heavily. He felt that Suhas Roge might have done the said incident when he uttered the word that “Amhi aamchya dushmanala khalas kele” (We eliminated our enemy). He never informed the said fact to anybody from 13/6/2008 to 5/8/2008 till police asked him. All these admissions are crystal clear to show that the testimony of P.W.15 Vinod Naik remained not only intact but the same has been only reiterated in his cross examination.
134.
During his cross examination, he volunteer that he used to go with Suhas Roge at the house of accused Jaya Chheda. Nobody was accompanied them. He was not entering the house of Jaya and used to sit in his car. Police did not ask him about the black magic i.e. burning of dolls and thereby, he never stated so. They reached the house of Sanjay Shirke, at about 10.00 p.m. and they were present till 1.30 a.m. He again admitted that he was not frightened after hearing the words of Suhas Roge that “Amhi aamchya dushmanala khalas kele” (We eliminated our enemy). They did not ask accused Suhas Roge about the said talk and he ignored the said talk. It is admitted that P.W.15 Vinod Naik was suspended from Government service and working as an electrician and that too, sometimes with accused Suhas Roge. He used to accompany the accused as and when called. It also appears on record that on payment of Rs.1000/ by Suhas ...110/
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Roge, he reached two bundles of currency notes to one Gotya. At the same time, at the instance of accused Suhas Roge, he went to the house of Sanjay Shirke. Question arose as to how such man can dare to ask accused Suhas Roge regarding the incident. His testimony is found to be cogent, reliable and trustworthy. There is no reason to disbelieve the same. The evidence proves the extra judicial confession given by accused no.4 Suhas Roge to the aforesaid two witnesses. 135.
By examining P.W.68 Sanjay Shirke, it has come on the record that since birth, he is residing at Malbar Hill and looks after the business of saloon of his father. He is also looking the business of tours and travels. When in the year 199495, Swamiji came to Ashram of Gagangiri Maharaj, Malbar Hill, he and accused Suhas Roge were volunteers. He is also a social worker and contested BMC as well as State Assembly elections. He admitted that he arranged telephone booth to one Jahida Khan @ Rodrigues, who is handicapped and residing in Malbar Hill, who is wife of P.W.16 Joseph Rodrigues, who is mechanic. Since the year 200304, he is knowing them. Accused Suhas Roge was running newspaper namely “Mumbai Crime” whereas he was working as Executive Editor. He used to contact with Suhas Roge but he did not know the telephone number.
...111/
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136.
The witness further deposed that on 13/6/2008, he was at Malbar Hill. He read the newspaper that accused Suhas Roge was arrested by police. He was called at Crawford market. He did not remember whether his telephone was recorded by the police and made inquiry about P.W.16 Joseph Rodrigues. He stated that it might have happened that on 13/6/2008, at about 9.30 to 10.00p.m., Suhas Roge came to his house in his Maruti van. He did not support the prosecution and therefore, learned Special P.P. cross examined him after the permission from the Court.
137.
During his cross examination by learned Special P.P., he admitted that he did not remember whether Vinod Naik came to his house. Witness Joseph, his wife and daughter might have come to his house as they were having visiting terms with his family. It did not happen that news strip “Mataka King Suresh Bhagat killed in an accident” was running on the television and it did not happen that Suhas Roge overwhelmingly raised hands and said that he had finished his enemy. He also denied that thereafter, he went to bring the snacks and cold drinks for Suhas Roge. He did not remember whether he brought snacks and cold drinks for Suhas Roge, Vinod ...112/
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Naik and Joseph Rodrigues. He did not know the relation between Suhas Roge and Jaya Chheda as well as they were running mataka business. He denied the recording of his statement of portion marked A and B. But during examinationinchief of investigating officer P.W.80 ACP A.T. Duraphe, this portion marked A and B was referred and it was marked as portion marked A and B as it was recorded as per the say of P.W.68 Sanjay Shirke. He admitted that the case was lodged against him in respect of son of Joseph having consumed Tik
20.
138.
By examining P.W.80 ACP A.T. Duraphe, prosecution proved the statement of P.W.68 Sanjay Shirke. The portion marked A and B of the statement of Sanjay Shirke has been proved by the investigating officer A.T. Duraphe. P.W.68 Sanjay Shirke did not support the prosecution. It is to be noted here that he is not a layman. He is politician and contested the election of State Assembly as well as Corporation. He is also executive editor of the newspaper “Mumbai Crime” which was run by accused Suhas Roge. His admission that on the day of the incident, accused Suhas Roge might have visited his house, lends support to the visit to his house.
...113/
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139.
(A) Learned Senior Advocate Shri Adhik Shirodkar placed reliance on : (i)
Sahadevan and another v/s. State of Tamil Nadu,
(2012) 6 SCC 403, in which it has been held, “where the prosecution relies upon an extrajudicial confession, the court has to examine the same with a greater degree of care and caution”.
(B) Learned Counsel Shri S.R. Pasbola placed reliance on:
(i)
SK Yusuf V/s. State of West Bengal, (2011)11 S.C (Cri) 754=2011 ALL MR (Cri) 2365 (S.C.), in which it has been held, “Extrajudicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. It must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. It can be accepted and can be the basis of a conviction if it passes the test of credibility.”
(ii)
Sunil Rai Alias Pauya and Ors V/s. Union Territory, Chandigarh, (2012) 1 S.C.C. (Cri) 543 = (2012) 1 S.C.C. (Cri) 543, in which it has been held, “extrajudicial confession statement made orally before a person with whom maker of confession ...114/
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has no intimate relationship. In such case confessional statement is not a very strong piece of evidence and in any event it can only be used for corroboration.”
(iii) Pancho V/s. The State of Haryana, (2011)10 S.C (Cri) 165, in which it has been held, “extrajudicial confession made by the accused to the person of intimacy after the delay and delay is not explained in such case evidence is not credible.” (iv)
State of M.P. V/s. Paltan Mallah & Ors, 2005 Cri. L.J. 918 SC, in which it has been held, “extrajudicial confession of co
accused and his confession that the other coaccused gave him money to murder the deceased/victim. However no substantive evidence is against the other accused. In such case no conviction can be based on extrajudicial confession of coaccused.” (v)
C.K. Raveendran V/s. State of Kerala, 2000 Cri. L.J. 497, in which it has been held, “prosecution witness failed to reproduce extrajudicial confession made to him in exact words or even in the words as nearly as possible. Further his statement showing that he consumed liquor along with accused and thereafter accused disclosed the entire incident to him. Statement by accused ...115/
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cannot be said to be voluntary and truthful one. On the other hand it is outcome of consumption of liquor, both the witness as well as accused. Thus said extrajudicial confession has to be excluded from purview of consideration for bringing home the charge”.
(vi)
S. Arul Raja V/s. State of Tamil Nadu, (2010)3 S.C.C.(Cri) 801 = (2010)8 S.C.C.(Cri) 233, in which it has been held, “extrajudicial confession is a weak piece of evidence. Though it can be made the basis of conviction, due care and caution must be exercised by the courts to ascertain the truthfulness of the confession. Rules of caution must be applied before accepting an extrajudicial confession. Before the court proceeds to act on the basis of an extrajudicial confession, the circumstances under which it is made, the manner in which it is made and the persons to whom it is made must be considered along with the two rules of caution: first, whether the evidence of confession is reliable and second, whether it finds corroboration.”
(vii) Ajay Singh V/s. State of Maharashtra, (2008) 1 SCC (Cri.) 371 = 2007 AIR SCW 3845, in which it has been held, “while dealing with a stand of extrajudicial confession, court has to satisfy that the same was voluntary and without any coercion and undue influence, as well as ...116/
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person to whom confession is made should be unbiased and not inimical to the accused.”
The principles laid down in the above cited rulings are that, extra judicial confession requires appreciation with great care and caution regarding the voluntary and fit state of mind. Nothing is brought on record that at the relevant time, that neither accused Suhas Roge nor the witnesses were under intoxication. Thereby, the principles laid down in the above cited rulings are not helpful to the accused as the facts in hand and facts in the cited supra are not identical. 140.
Ld. Counsel Shri S.R. Pasbola submitted that while examining the P.W.16 Joseph Rodrigues, prosecution never explained the delay in a proper perspective and therefore his testimony cannot be relied upon. Hence, he placed reliance on: (i)
Lahu Kamlakar Patil & Anr. V/s. State of Maharashtra, 2013(1) Bom.C.R. (Cri) 631 S.C., (ii) Jagjit Singh Alias Jagga V/s. State of Punjab, (2005)3 S.C.C. 689, (iii) Maruti Rama Naik V/s. State of Maharashtra, (2003)10 S.C.C. 670, (iv) State of Punjab V/s. Gurdeep Singh, LAWS(SC)19999114 and (v)Surajit Sarkar V/s. State of West Bengal, 2013 CRI. L.J. 1137 (S.C.). ...117/
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in which it has been held, “delay in examination of witness itself not fatal to the prosecution but taken together with other facts which demand explanation.” I have gone through the above cited rulings, in which it has been held that when there is a delay in examination of witnesses, prosecution has to explain the delay. The witness i.e. P.W.16 had gone to Ajmer and Kolhapur, therefore, the delay is properly explained. The delay in recording statement of P.W.15 cannot be said to be perse fatal. Therefore, the principles laid down in above cited rulings are not helpful to the accused as the facts are different.
141.
Learned Senior Advocate Shri Adhik Shirodkar placed reliance on :
(i)
Ram Charan and others v/s. The State of U.P., 1968 CRI.L.J. 1473 SC, in which it has been held, “if a statement of witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other ...118/
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circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon”.
Balak Ram and another v/s. State of U.P., 1974 CRI.L.J. 1486 SC, in which it has been held, “the evidence of witnesses (ii)
cannot be discarded merely because their statements were recorded under Section 164. Their evidence must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version. A prosecution for perjury could be the price of that freedom. It is, of course, open to the court to accept the evidence of a witness whose statement was recorded under Section 164, but the salient rule of caution must always be borne in mind”.
Both these citations are in respect of evidentiary value of statement of witnesses when previously recorded u/s.164 of Code of Criminal Procedure and its settled position. P.W.16 Joseph Rodrigues and P.W.15 Vinod Madan Naik have not resiled from their previous statements. Therefore, the principles laid down in cited supra are not branded in this case.
142.
Ld. Spl.P.P.Ms. Kalpana Chavan placed reliance on :
(i)
State of U.P. V/s. M.K. Anthony, AIR 1985 SC 48, ...119/
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in which it is held, "if the evidence about extrajudicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.” (ii)
Ajay Singh V/s. State of Maharashtra, 2007 AIR SCW 3845, in which it is held that, "human mind is not a tape recorder which records what has been spoken word by word. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a ...120/
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stand of extra judicial confession, Court has to satisfy that the same was voluntary and without any coercion and undue influence.” (iii) R.Kuppusamy V/s.State (Ambeiligai),
2013 AIR SCW 1293, in which it is held, "conviction on the basis of extrajudicial confession to Village Administrative Officer (VAO) made immediately after accused threw daughter in well. VAO not inimical towards accused. Death of daughter confirmed by medical evidence. Presence of accused in village at the relevant time and extra judicial confession corroborated by evidence on record is proper to convict the accused.” I have gone through the above cited rulings. The principles laid down in the above cited rulings are perfectly applicable to the case in hand as the same appears as the witnesses are unbiased and not having inimical terms, therefore, found to be reliable.
143.
It is to be noted here that by examining P.W.15 Vinod Madan Naik, P.W.16 Joseph Robert Rodrigues and even P.W.68 Sanjay Ramchandra Shirke, to an extent prosecution proved the extra judicial confession of accused Suhas Roge in respect of his involvement in the murder of deceased Suresh Bhagat. There is no variance in their statements. There is nothing to show that the extra ...121/
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judicial confession was made involuntarily or in unfit state of mind. The confession is unambiguous and clear in term. The evidence laid by the prosecution in respect of extra judicial confession of accused no.4 Suhas Roge is thus found to be cogent and reliable. RECOVERY OF MOBILE OF ACCUSED NO.5 KIRAN AMLE
144.
To arraign the accused no.5 Kiran Amle, prosecution has examined his cousin P.W.59 Sandeep Bhiku Shirodkar, resident of Mapusa, Goa. It has come in the evidence of P.W.59 Sandeep Shirodkar that accused Kiran Amle is son of his aunt. On 18/6/2008, he had come to Goa and stayed at his house along with his two friends. They stated him that they had gone to Shirdi and while returning, they came go to Goa. When accused Kiran Amle came to his house, he had given his mobile handset of Nokia which did not have the battery and SIM card. He gave the said mobile to police by drawing panchanama (Exh.639). He also identified the said mobile (Article 11) which was produced by him. By examining P.W.59 Sandeep Shirodkar, prosecution proved the seizure of mobile of accused Kiran Amle under panchanama (Exh.639). The prosecution has also examined P.W.69 API S.D. Barge and proved the seizure panchanama (Exh.639/717) of mobile of Kiran Amle from the possession of Sandeep Shirodkar.
...122/
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145.
At the time of the arguments, Ld. Advocate Shri Amit Munde raised the objection that mobile (Article 11) which was seized from the possession of P.W.59 Sandeep Shirodkar does not bears SIM and battery. IMEI number mentioned on Article 11 is mismatched with call detail record. The other subscribers whose mobiles have been used by the accused are the witness. Without any incriminating evidence of conspiracy, accused no.5 is impleaded as an accused. While evaluating the evidence, it has come on the record that mere mismatched of one number in the mobile does not affect the record of call details. P.W.59 is his cousin. There is no reason to P.W.59 Sandeep to tell the lie against him. He produced the mobile which does not bears SIM as well as battery as it was not handed over by the accused. Therefore, the mobile (Article 11) which handed over by accused no.5 Kiran Amle has been produced by P.W.59 Sandeep Shirodkar. It has come on the record that while handing over the mobile, accused Kiran Amle deliberately not handed over SIM as well as battery to suppress the material fact. The subscriber detail record of accused no.5 Kiran Amle is also having change in the name of his father. Instead of 'Baban' deliberately it has mentioned as 'Bharat'. Thereby it can be inferred that since beginning, he has taken due care to suppress his identity for one or other reason because prepaid ...123/
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application form bears his photograph. On the contrary circumstances brought on record by the prosecution clearly shows that at the time of incident, accused Harish Mandvikar used his mobile that too, with his consent and thereby, within a short period, he went to Mhapusa (Goa) and handed over to P.W.59 Sandeep Shirodkar. Thereby, the grounds raised by the Advocate for the accused in the defence of accused Kiran Amle has no substance. All these objections are found to be baseless.
RELATIVES OF THE DECEASED
146.
The prosecution has examined the relatives of the deceased viz. P.W.17 Varsha Tushar Shah, who is the wife of deceased Tushar Shah, P.W.32 Vinod Kalyanji Bhagat, who is the brother of deceased Suresh Bhagat and P.W.45 Ashok Habu Kamble, who is the father of deceased Kamlesh Kamble. P.W.17 Varsha Tushar Shah deposed that she married Tushar Shah on 16/12/2007 and residing at Worli with her inlaws. Her husband was businessman. Deceased Suresh Bhagat was maternal uncle of her deceased husband. On the day of the incident i.e. on 13/6/2008, matter was fixed for hearing in Alibaug Court. She received phone call from the servant of Suresh Bhagat and informed that Tushar is serious and informed about the accident. On 14/6/2008, dead body of Tushar was brought to the home ...124/
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and she also learnt that Suresh Bhagat was also no more. Two months prior to the incident, her husband was under tension and used to remain serious. When she asked, he stated her on a condition not to disclose anybody that he is getting threats on phone call from Suhas Roge, Jaya Chheda, Kiran Pujari, Chintu @ Hitesh Bhagat and Arun Gawali, to leave the company of Suresh Bhagat. Her husband also informed that Suhas Roge and Kiran Pujari threatened him on the point of pistol (“pistol sar pe laga diya tha”) to leave the company of Suresh Bhagat, otherwise he will be eliminated . Her husband also informed that Suresh Bhagat already filed the complaint to the police.
147.
P.W.17 Varsha Shah in her cross examination by Senior Advocate Shri Adhik Shirodkar for accused no.4 admitted that when she came to know about the complaint made by Suresh Bhagat, she thought that same will be beneficial. At the same time, she felt that there is a danger to the life of her husband and Suresh Bhagat. She did not disclose the said fact to her inlaws as she had promised Tushar Shah of the confidentiality. Incident of pointing of pistol on the part of the accused Suhas Roge took place in the Hotel at Mumbai. After hearing the incident of pointing out the pistol, she was frightened. She further denied that only Kiran Pujari pointed ...125/
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out the pistol on the head of her husband Tushar Shah in the Hotel in Mumbai and threatened him. She further admitted that her husband Tushar was also running a business of Gems and colour stones under the name and style M/s. Kalyan International. Her husband and fatherinlaw has no concern with the mataka business of Suresh Bhagat.
148.
In her cross examination by Advocate Shri Pasbola, she admitted that her husband Tushar was accused in NDPS Case at Alibaug. He was roaming around Suresh Bhagat and accompanied in the court, police stations, lawyers' office etc.. She asked her husband whether Suresh Bhagat mentioned the fact of threats in the complaint or not and her husband informed that it was not mentioned so. She admitted that no threatening calls were received by Tushar in her presence. She came to know from her inlaws that there was quarrel on account of mataka business between accused Jaya Chheda and Suresh Bhagat. In spite of her detail cross examination, her testimony remained intact. 149.
By examining P.W.17 Varsha Tushar Shah, it has come on the record that deceased Tushar Shah was also the accused in NDPS case in Alibaug Court. Deceased Tushar Shah also accompanied with ...126/
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deceased Suresh Bhagat and at the time of the incident. The fact in respect of threatening of her husband by Kiran Pujari & Suhas Roge to leave the company of Suresh Bhagat otherwise he will be eliminated remains on record which is also a strong circumstance on record against accused Suhas Roge,Kiran Pujari,Jaya Chheda & Hitesh Bhagat. 150.
P.W.32 Vinod Kalyanji Bhagat is a brother of deceased Suresh Bhagat. It has come in his evidence that deceased Suresh Bhagat and one Jayantilal are his two brothers. They are having one sister by name Vandana. His father Kalyanji was running mataka business which was continued by his brother Suresh Bhagat. His brother Suresh Bhagat was also running chemical and jewellery business. Relationship between his brother Suresh and his wife Jaya were spoiled. She was having illicit relations with accused Suhas Roge. Their marriage, however, ended in divorce. Accused Jaya was having illeye over mataka business. Prior to the incident, he went to Canada. Before his departure, his brother Suresh became frightened and informed the reason that Jaya Chheda, Hitesh Bhagat,Suhas Roge and Kiran Pujari were threatening him to hand over his property. They falsely implicated his brother in various cases. ...127/
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Thereby, he made complaint before Commissioner of Police as well as filed Writ petition before Hon'ble High Court.
151.
In his cross examination, he admitted that during the period from 199497 his relation with his brother Suresh were not cordial due to misunderstanding. Later on, it was patched up. They were having visiting terms. Defence was also taken that he was also implicated in case of Narcotic Act and arrested from time to time. He also admitted the dispute between them on account of cross complaints against each other and that too, between him and deceased Suresh Bhagat as well as against accused no.7 Jaya Chheda. It has also brought on record that Suresh Bhagat also lodged the complaint against him. His cousin Jayesh Sangoi also lodged the complaint of extortion against him. He admitted the filing of Writ Petition bearing no.20/2010. He admitted that he opposed the bail application of accused no.7 Jaya Chheda and accused no.8 Hitesh Bhagat as he is intending that accused shall remain behind the bar. It is the defence of the accused that another brother Vasantbhai is also murdered in which is his niece Pratima Ambore is an accused. During cross examination, defence has filed the certified copies as well as copy of the chargesheet, complaint, application of ...128/
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their cases as well as cross complaints which are at Exh.515 to Exh.527.
152.
It has further come in his cross examination that after the death of Suresh Bhagat, he and his niece Tanujaben filed the petitions before Small Causes Court, as a legal heirs of deceased Suresh Bhagat. After the death of deceased Suresh, he meet investigating officer, Poynad police station as well as L.C.B. (Crime). He filed an application to the State of Maharashtra for the appointment of Special Public Prosecutor in this matter and also undertaken to pay the fees of the Special Public Prosecutor. 153.
Upon perusal of the testimony of P.W.32, it reveals on record that the relations between P.W.32 Vinod Bhagat and deceased Suresh Bhagat were also strained and not cordial. Deceased Suresh Bhagat as well as witness Vinod Bhagat were implicated in various cases under NDPS Act. Accused as well as the witnesses were having strained relations. It does not mean that his testimony is liable to be thrown away. On the contrary, it is proved that relation between deceased Suresh Bhagat and accused no.7 Jaya Chheda as well as Hitesh Bhagat were strained and accused were having illeye over ...129/
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mataka business by joining the hands with the accused Suhas Roge and Kiran Pujari. This fact remains intact.
154.
It has come in the evidence of P.W.45 Ashok Habu Kamble that on the day of the incident i.e. on 13/6/2008, his deceased son Kamlesh Kamble was present in Alibaug Court. At the relevant time, he was standing outside the court because his son was attending the date in the Court. Date was given at about 12:45 p.m.. He was standing near Scorpio in which Kamlesh, Valmik, Suresh Bhagat and other three persons sat and he went to Bus stand. At about 2 p.m., he received call informing that Kamlesh received injury in the accident. Therefore, he reached at Civil Hospital and saw that his son was lying on the stretcher and sustained bleeding injuries on his head etc.. He was advised for higher medical treatment at Mumbai. Therefore, he was forwarded to Sion Hospital by Ambulance. On next day i.e. on 14/6/2008, he received dead body of his son. Despite sufficient opportunities, Advocate for the accused declined to cross examine him. Therefore,his testimony remains unchallenged. By examining P.W.45 Ashok Kamble,the facts brought on record that on 13/6/2008, deceased Suresh Bhagat,his son Kamlesh and other four attended Alibaug Court. They left Alibaug at 12:45 p.m.. Immediately, within one hour, he received the message of ...130/
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accident.His son died on the next day due to the impact of the accident. This fact remains unchallenged.
155.
All these testimonies of the relatives of the deceased co
relate each other in respect of the death of Suresh Bhagat, Tushar Shah and Kamlesh Kamble.
ARREST & RECOVERIES
156.
Prosecution relied on various panchanamas i.e. arrest panchanama, recovery of mobiles, various cars, recovery of Rs.23.50 lakhs and Rs.8 lakhs at the instance of accused Harish Mandvikar u/s.27 of Evidence Act, Rs.4 lakhs from approver Kiran Pujari, etc.. In support of their case, prosecution examined P.W.27 Shailesh Shivram Patil (Exh.491). He deposed that on 14/7/2008, he came to Crawford Market for purchase of some agriculture implements. One police Havildar asked him for help by acting as a pancha and took him to Crime Branch. Said office is situated on the first floor. One muslim person was another pancha. One accused was saying that some amount is kept in the house of his friend. Accused laid them in Saibaba Nagar, Kandivali (W), in the hutment area. It was having net type door. One boy opened the door and police asked that boy to hand over the amount. He saw the amount, however, he cannot tell ...131/
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the details. The police took the amount and left the place. Thereafter, they returned to Crime Branch where he signed the panchanama (Exh.492). He failed to state the contents of the panchanama. In his cross examination by Ld. Spl.P.P., he admitted that accused also signed the panchanama and panchanama was written by the police. He also admitted that person took out the cash from iron cupboard and handed over to the police. He signed the panchanama (Exh.493 colly.) because it was correct. In his further cross examination by Ld. Advocate Shri Vilas Naik, he stated that panchanama was read over to him. Both the panchas made the signatures simultaneously. Though, he did not fully support the prosecution, he admitted his signature on the seizure panchanama (Exh.493) as well as seizure of cash by the police from Saibaba Nagar, Kandivali (W) and that too, at the instance of the accused no.3 Harish Mandvikar. The material piece of evidence is that he is supporting to the prosecution and admitted its execution. Therefore, his testimony is found to be reliable and trustworthy. 157.
P.W.28 Nitin Shravan Dhepe deposed that he is an agriculturist and also carries business of construction of compound wall in his village. He is having coconut and betel nuts farm/orchards. On 15/6/2008, when he was at Alibaug S.T. Stand, ...132/
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police called him at Crime Branch office for panchanama. When he went there, at about 8 to 8.30 p.m., two people were present. Then he signed the panchanama. Again on the second day, he was called for 7 to 8 times. They went to Mumbai as per the call of the police. He was sitting in the vehicle. Two persons were with them. He accompanied by police and another two panchas. He signed 8 panchanamas on 2/3 different dates. Those dates may be 15,16,17, 18 June 2008. Out of that he once came to Mumbai. When he came from Mumbai, he signed one panchanama. He does not know the contents of the panchanama. Therefore, he did not support the prosecution, therefore, learned Special P.P. cross examined him. He admitted his signature on the panchanama dated 18/6/2008, 19/6/2008, 20/6/2008, 21/6/2008 and 22/6/2008. He admitted that on 17/6/2008, he was called by Alibaug Crime Branch Office. Another pancha Bhalchandra Gharat accompanied him. Even during the cross examination, he denied the search of the house of the accused/approver Ajimuddin Shaikh as well as his personal search. He admitted that on 18/6/2008, he was called API Raut of Alibaug. He denied that on 19/6/2008, police called him at police station and accused Harish Mandvikar was present. He denied the recovery of Rs.23.50 lakhs at the instance of the accused Harish Mandvikar. He also denied the recovery of three mobiles from the house of accused Harish ...133/
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Mandvikar. He also denied the panchanama dated 20/6/2008 at the house of one Parubai Mhatre. He also denied the panchanama of the house of accused Jaya Bhagat @ Jaya Chheda on 21/6/2008 as well as seizure of the papers. He also denied the seizure of mobiles from Activa. He also denied the seizure of Nokia mobiles from time to time. In his cross examination by advocate, he admitted that he signed the panchanama under fear of the police. 158.
P.W.29 Bhalchandra Jagannath Gharat deposed that on 16/6/2008, API More of LCB called him for panchanama of the accident of the truck. He also signed the panchanama on 16/6/2008. Some of them were in printed form. On 25/6/2008 and on 26/6/2008, police obtained his 5 to 6 signatures in the office of LCB, Alibaug. He admitted his signatures on the panchanama 15/6/2008, 17/6/2008, 18/6/2008, 19/6/2008, 20/6/2008, 21/6/2008 and 22/6/2008. During his cross examination by the Special P.P., he denied the recovery on the respective dates. On the contrary, during cross examination by Advocate for the accused, he admitted that he was the pancha in S.C.3/2010 which is of accused Babloo Shukla and others. He admitted his good relations with PI Shri V.K. More. He admitted that there is slope and curve on the said road between Dharmatar Creek bridge to Fauji Dhaba. ...134/
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159.
P.W.27, P.W.28 and P.W.29 are the witnesses on the various panchanamas of arrest of accused Pravin Shetty and approver Ajimuddin Shaikh dated 15/6/2008, house search panchanama of both of them dated 17/6/2008, production panchanama of Maruti Swift car bearing no.MH02AP4563 dated 18/6/2008, memorandum panchanama and recovery panchanama (Exh.761 & Exh.762) at the instance of Harish Mandvikar dated 19/6/2008 and 20/6/2008, house search panchanama of accused no.3 Harish Mandvikar dated 20/6/2008 regarding recovery of three mobile phones, house search panchanama of accused no.1 Pravin Shetty dated 20/6/2008, house search panchanama of accused no.7 Jaya Chheda dated 21/6/2008, panchanama of the recovery of muddemal produced by Santosh Gupta dated 22/6/2008, recovery of mobile handset of accused Kiran Amle from P.W.59 S.S. Shirodkar dated 22/6/2008, recovery of three mobile handsets at the instance of accused Suhas Roge from Activa motorcycle dated 31/6/2008 and recovery of Rs.8 lakhs under memorandum panchanama at the instance of accused Harish Mandvikar dated 14/7/2008 from the house of Anthony Raj Nanya Dravid. Although, these panchas have merely admitted their signatures. The panchanamas are duly proved by P.W.78 I.O. V.K. More, P.W.62 approver Ajimuddin Shaikh, IO ...135/
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P.W.53 PI Sheetal Raut, P.W.56 IO K.S. Shengle as well as at the instance of witness P.W.16 Joseph Rodrigues, P.W.77 Anthony Raj Nanya Dravid and P.W.59 Sandeep Shirodkar. Though, the panchas did not support the prosecution, all the panchanamas have been duly proved by the investigating officers. 160.
(A) Learned Advocate Shri Vilas Naik placed reliance on:
(i)
Mohd. Hussain Babamiyan Ramzan V/s. State of Maharashtra, 1994(100) CRLJ 1020 BOM, in which it has been held, “it is expected that I.O. will take independent panch witnesses and if knowingly he has taken pliable witness as a panch entire raid becomes suspicious and it would not be sufficient to base the conviction.” (ii)
Benard Chapanga V/s. The State of Maharashtra, 2003 (2) ALD Cri 121 = 2004 (Supp) Bom. C.R. 183, in which it has been held, “witness had already acted as a panch in some cases cannot be stamped as liar. Acting as a panch witness in previous cases does not by itself and alone disentitle him of creditworthiness. His evidence has been examined with proper approach guarded by normal human experience and prudence of prudent person. Thereby the principle laid down in the above cited ruling is not helpful to the accused but it helps the prosecution though the panchas are ...136/
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previously acted as a panch.” (B) Learned Spl.P.P. Ms. Kalpana Chavan placed reliance on: (i) The State of Maharashtra v/s. Prakash Dhawal Khairnar (Patil) & Ors., 2001 ALL MR (Cri) 222, in which it has been held, “The reticence on the part of people to become a witness, of which judicial notice can be taken, leaves the Investigating Officer with no other option but, to repeatedly have the same persons as a pancha. In view of fact that nobody volunteers to act as panch in police case investigating officer is left with no option but to use the same person as a panch.”
(ii) Anter Singh v/s. State of Rajasthan, AIR 2004 Supreme Court 2865, in which it has been held, “if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated”. (iii) Lachhman Ram and others v/s. State of Orissa, 1985 SCC (Cri) 263, in which it has been held, “testimony of the panchas will not become doubtful merely on their failure to identify the accused”.
(iv)
State Govt. of NCT of Delhi v/s. Sunil & Anr., 2001 (1) Crimes 176, in which it has been held, “Non attestation of seizure memo by independent witnesses cannot be ground to disbelieve ...137/
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recovery of articles seized consequent upon statement of accused. No requirement either under Section 27 Evidence Act or under Section 161 Cr.P.C. to obtain signature of independent witnesses. When recovery is effected pursuant to statement of accused document prepared by I.O. need not necessarily be attested by independent witnesses. Court has to believe version of police to be correct if it is otherwise shown to be unreliable”.
I have gone through the above cited rulings. The principle laid down in above cited rulings is perfectly applicable to the case in hand. It is noted that nobody volunteers to act as a pancha in police case. Thereby, investigating officer is left with no option but to use the same person as a pancha. In the light of the principles cited supra by the learned Spl.P.P., the citations submitted by the Advocate Vilas Naik are not helpful in the present case. 161.
There is no reason to disbelieve the testimony of the investigating officers when they carried out the investigation while discharging their duties. Thereby, I am of the opinion that though the panchas did not support the prosecution case, it does not affect the evidence which laid by the prosecution and thereby, it is found to be ...138/
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reliable and trustworthy and thereby, prosecution successfully proved the panchanamas of spot (Exh.609), seizure of pistol and mobiles from Scorpio (Exh.733), seizure of mobiles (Exh.604, Exh.717, Exh.762 & Exh.770), seizure of amount of Rs.8 lakhs from the possession of P.W.77 Anthony Raj Nannya Dravid (Exh.493), recovery of Rs.23.50 lakhs from the possession of P.W.39 Arvind Modasia (Exh.760 & Exh.761) as well as recovery of Rs.4 lakhs from the house of approver Kiran Pujari (Exh.627 & Exh.627A), seizure of Maruti Swift car and Maruti Zen car (Exh.508, Exh.615 & Exh.628), search panchanama of approver Kiran Pujari, accused no.7 Jaya Chheda and accused no.8 Hitesh Bhagat (Exh.786, 788 & Exh.789). CALL DETAIL RECORD (CDR) & SUBSCRIBER DETAIL RECORD (SDR)
162.
It is the case of the prosecution that accused hatched the conspiracy for committing the crime for which they used the mobiles in their possession, even of the mobiles are subscribed by others. The list of the name of the accused/witness as well as their mobile numbers and its subscriber with International Mobile Equipment Identification (IMEI) number is given as under :
...139/
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Sr.
No.
1.
Name of Mobile No. CDR SDR IMEI No. (as Name of the (Exh.) (Exh.) mentioned in the Subscriber
panchanamas &/or accused/
as found on the witness handsets)
who used the mobile
A.No.1 Pravin Shetty
9967736462 Ex.694
X64

Self

V.D.Pawar (PW 10)
2.
Approver 9324260303 Ex.625 X44/ Ajimuddin Ex.429
Shaikh
3.
A.no.3 9867547490 Ex.648 Ex.646 35532014381472
Harish & Mandvikar
Ex.700
A.No.3 9833507523 Ex.690
Harish Mandvikar
4.
5.
Art. No.
Kiran Amle Art.11
(A.no.5)
X63
352936023018566 Self
9222003157 Ex.653
X45
X58
ESN of 1 3 BB 68 Moh.Kashif Art.13
(P.W.11)
9920960871 Ex.685
X59
352936023911810 R.R.Sawant (P.W.12)
9930159144 Ex.687
X60
353660010118408 N.N. Roge
Approver 9870557511 Ex.635
Kiran Pujari
X49/
X51
358997011074171 P. H. Patil Art.30
(PW21)
A.No.4 Suhas Roge
6.
A.no.5 Kiran Amle 7.
A.no.7 Jaya Chheda
Art. 06
Art.08
9867547490 Ex.648 Ex.646 35532014381472
&
Ex.700
Self (used Art.11
by A.no.3)
9833418884 Ex.689
Self
X62

...140/
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Sr.
No.
Name of Mobile No. CDR SDR IMEI No. (as Name of the (Exh.) (Exh.) mentioned in the Subscriber
panchanamas &/or accused/
as found on the witness handsets)
who used the mobile
8.
A.no.8 Hitesh Bhagat
9.
P.W.02 9892222379 Ex.647 Ex.645
Adv.S.S. Shirsat

Self
10.
P.W.77 9833110177
Anthony Dravid

Self
163.
9920155555

Ex.688 Ex.757/
Ex.758/
X61
Art. No.
352913029438973 Self
At the time of the arguments, learned Spl.P.P. Ms. Kalpana Chavan submitted the chart along with application (Exh.850), showing the names of the accused, mobile number which they used, in whose name mobile number stands and the witness examined as well as their details of contacts i.e. on the basis of call detail record between them.
164.
P.W.10 Vinayak D. Pawar stated that though the prepaid application form (X44/Exh.429) has his signature, his PAN card and electricity bill is there, he is not using mobile no.9324260303. P.W.62 approver Ajimuddin Shaikh deposed that he purchased the mobile in ...141/
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local market and using the same. By examining P.W.55 Nodal Officer R.S. Gaikwad, prosecution proved the letter issued by I.O. (Exh.624) and its call details (Exh.625). Though call detail record does not bear the certificate in the prescribed form u/s.65(B) of Evidence Act, prosecution examined P.W.55 R.S. Gaikwad, Nodal Officer of Reliance Mobile and proved the call detail record.
165.
It has come in the evidence of P.W.11 Mohd. Kashif Abdul Majid that subscriber detail record (X45) and xerox copy of his license does not bears his signature. He admitted that Article 2 is his original driving license. He admitted that he was running STD booth and used to sale SIM cards. Though he denied the signature on bare comparison of signature on Article 2 driving license and signature on his subscriber detail record (X45 and X58) are found closely similar. By examining P.W.61 Darshansingh Randhawa, prosecution has brought on record xerox copy of his subscriber detail record (X58). The letter issued by P.W.61 in respect of his subscriber detail record is at Exh.652. Senior Executive of TATA Communication issued a certificate in respect of the said telephone no.9222003157 standing in the name of P.W.11 Mohd. Kashif. It was found in the possession of Suhas Roge. It is established that accused no.4 Suhas Roge used the ...142/
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mobile no. 9222003157, though it is in the name of P.W.11 Mohd. Kashif. 166.
It has come in the evidence of P.W.19 Amit Pandurang Patil that Kiran Pujari is his childhood friend. P.W.21 Pandurang Patil is father of P.W.19 Amit Patil. Copy of the letter issued by the Additional Commissioner of Police in respect of subscriber call record and call detail record of mobile no.9870557511 is at Exh.633. Subscriber detail record of P.W.21 Pandurang Patil are at X51 and X
49 colly. The reply letter issued by the Nodal Officer P.W.57 Sudhakar Musale is at Exh.634 and call detail record are at Exh.635. P.W.19 Amit Patil and P.W.21 Pandurang Patil as well as P.W.05 approver Kiran Pujari admitted that approver Kiran Pujari was using the mobile bearing no.9870557511 which is in the name of Pandurang Patil. Thereby, prosecution succeeded to prove the correspondence between the investigating officer and the Telecommunication company as well as subscriber detail record and call detail record of mobile no.9870557511.
167.
It has come in the evidence of P.W.26 Deepak Devrukar that he knows accused Suhas Roge and he is using the mobile bearing no.9930159144. Call detail record of 9930159144 are also at ...143/
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Exh.687 and the same has been proved by P.W.63 Nodal Officer Vikas Phulkar of Max Touch/Vodafone. Thereby, it has come on the record that accused Suhas Roge was using the said phone bearing no. 9930159144. The prosecution also relied on the original form of subscriber detail record of the said phone i.e. 9930159144. It is in the name of Narendra N. Roge. The residential address of Narendra Roge and the residential address of the accused Suhas Roge are the same. By examining P.W.26 Deepak Devrukar, it has brought on record that though mobile no. 9930159144 was in the name of Narendra Roge, accused Suhas Roge was using the same.
168.
It has come in the evidence of P.W.12 Rakesh Sawant that he knows accused Suhas Roge. Before about 4 years, they met in the Ashram of Gagangiri Maharaj. Sometimes, he was working with him as a driver. He did not support the prosecution, therefore, learned Spl.P.P. cross examined him. During his cross examination, he admitted that original prepaid application form (X59) bears his photograph. But it did not bears his signature. Exh. 687 is in respect of the mobile no. 9920960871 which is in possession of the accused Suhas Roge. Portion marked A and B of his statement has been duly proved by P.W.78 I.O. PI V.K. More. They are at Exh.771 and ...144/
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Exh.772. Thereby, though he did not support the prosecution, it has been duly proved by the investigating officer that mobile no. 9920960871 purchased in the name of Rakesh Sawant and the same was used by accused Suhas Roge.
169.
By examining P.W.63 Nodal Officer Vikas Phulkar, prosecution proved copy of the letter issued by the Superintendent of Police, Raigad (Exh.682), copy of the letter issued by Additional Commissioner of Police regarding call detail record and subscriber detail record (Exh.683 & Exh.684). He also filed the call detail record of mobile no.9920960871 which is at Exh.685 and its subscriber detail record (X59) and cell Id at Exh.686. He filed subscriber detail record of mobile no.9930159144 which is in the name of Narendra Roge (X60). He filed its call detail record (Exh.687). Mobile no. 9833110177 pertains to P.W.77 Anthony Raj Nannya Dravid and its subscriber detail record is at X61 (Exh.757). Its call detail record is at Exh.688. He also narrated the cell Id pertains to Borivali, Andheri and Panvel. 170.
It has further come in his evidence that mobile bearing no. 9833418884 belongs to accused Jaya Chheda and the xerox copy of the subscriber detail record (X62). He filed the call detail record of ...145/
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mobile no. 9833418884 (Exh.689 colly.). In her statement u/s. 313 Cr.P.C., accused no.7 Jaya Chheda admitted her mobile number.
171.
It has further come in the evidence of P.W.63 Nodal Officer Vikas Phulkar that prepaid application form (X61) is in the name of Anthony Raj Nannya Dravid and its call detail record are at Exh.688. By examining P.W.77 Anthony Raj Nannya Dravid, prosecution proved that the prepaid application form (X61) bears his signature as well as his photograph and the xerox copy of passport (Exh.757 and 758). Thereby, prosecution proved that at the relevant time, witness Antony Raj Nannya Dravid was using mobile no. 9833110177. It has brought on record that on the day of the incident, mobile no. 9833110177 was in possession of Anthony Raj Nannya Dravid. He also filed the cell site address (Exh.706 colly.).
172.
It has further come in the evidence of P.W.63 Nodal Officer Vikas Phulkar that prepaid application form X63 is in the name of Harish Ganiga @ Harish Mandvikar. He also filed call detail record of mobile no. 9833507523 at Exh.690, which was used by the accused no.3 Harish Mandvikar. Though P.W.63 was cross examined in detail, his testimony has not been shattered in respect of the ...146/
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subscriber detail record and call detail record of accused Harish Mandvikar. 173.
It has come in the evidence of P.W.60 Nodal Officer Sunil Tiwari that Additional Commissioner of Police issued a letter on 28/7/2008 (Exh.643) and sought information in respect of mobile no. 9892222379, 9867736462 and 9867547490. Accordingly, he replied the letter (Exh.644) and issued subscriber detail record of 9892222379 is of Adv. Somet Shirsat, 9867736462 is in the name of Mohd. Kasif and mobile no. 9867547490 is in the name of accused Kiran Amle. He also furnished the original subscriber detail record/mobile form of Adv. Somet Shirsat (Exh.645) and Airtel prepaid enrollment form of accused Kiran Amle (Exh.646). He also filed call detail record of Adv. Somet Shirsat (Exh.647) and call detail record of mobile no. 9867547490 of accused Kiran Amle dated 13/6/2008 (Exh.648). He gave the location of cell Id of respective calls. He is unable to reply whether the office copy of the letter the Additional Commissioner of Police (X57) has been received by their office or not and the same has been proved by P.W.70 G.B. Anerao which is at Exh.720. Despite his detail cross examination, his testimony remained unshaken. Nothing adverse has been brought on record against the evidence.
...147/
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174.
It has come in the evidence of P.W.61 Darshansingh Randhawa that he issued a letter to Additional Commissioner of Police in respect of subscriber detail record and call detail record of mobile no. 9222003157 (Exh.652), its call detail record (Exh.653) and its certificate (Exh.654) issued by Dattatray Sawant, Security Executive. He also admitted the subscriber detail record (X58 and X
45 colly.). He also filed its cell Id (Exh.655) and thereby, he proved the subscriber detail record and call detail record in respect of mobile no. 9222003157. 175.
P.W.60 S.S. Tiwari and P.W.64 Yogesh Rajapurkar have proved the call detail record of mobile no. 9967735462 and its cell Id (X64/Exh.694). He also stated about the location of cell Id by his letter (Exh.695 colly.). Thereby, prosecution proved the call detail record as well as cell Id and its location of mobile no. 9967735462 which was in the possession of accused no.1 Pravin Shetty. 176.
P.W.60 Sunil Suhaschandra Tiwari, P.W.61 Darshansingh Randhawa, P.W.63 Vikas Narayan Phulkar and Nodal Officer P.W.66 Chetan Srirang More have proved call detail record (Exh.700) of mobile no. 9867547490 (which is in the name of accused Kiran Amle), cell Id record (Exh.701), call detail record of mobile no.9967736462 ...148/
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(Exh.702) and its cell Id (Exh.703), cell site list (Exh.706) along with its certificate (Exh.699) which is required u/s. 65 (B) of Indian Evidence Act.
177.
Thereby, by examining Nodal Officers P.W.55, P.W.57, P.W.60. P.W.61, P.W.63, P.W.64 and P.W.66, prosecution has proved the subscriber detail record and call detail record, location of cell Id of the respective phones at the time of incident and thereby, proved the communication between the accused through these mobiles from time to time. 178.
Upon perusal of call detail record of P.W.02 Adv. Somet Shirsat (Exh.647), it is revealed that on 14/5/2008, day prior to the date of hearing (earlier date) in Alibaug Court, P.W.02 Advocate Somet Shirsat sent two SMS to mobile no. 9920155555 which is belongs to accused Hitesh Bhagat. Whereas on 13/6/2008, at about 12:24 and 12:31:15 hrs., he received two calls from Suhas Roge by his mobile bearing no. 9222003157. At the same time, call detail record (Exh.653) pertaining to mobile no. 9222003157 shows that he made two calls to mobile no. 9892222379 which belongs to Advocate Somet Shirsat. Thereby, both these documents corroborate the testimony of P.W.02 Advocate Somet Shirsat that on the day of the incident, ...149/
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accused Suhas Roge made inquiry regarding the presence of the accused in Alibaug Court.
179.
It is admitted by P.W.62 approver Ajimuddin Shaikh that mobile bearing no. 9324260303 was his mobile. The mobile of accused Kiran Amle bearing no. 9867547490 was with Harish Mandvikar. On 12/6/2008, he received phone call on his mobile at 14:01:28 hrs. Thereafter, he also received the calls at 12:23:27 hrs., 12:25:14 hrs., 12:26:51 hrs. and 13:25:49 hrs.. Thereafter, approver Ajimuddin Shaikh made the call on his phone at 16:42:28 hrs. and 17:05:58 hrs.. While comparing these calls with call detail record (Exh.648) of mobile of accused Kiran Amle bearing no. 9867547490, it is revealed that on 13/6/2008, at about 12:20:42 hrs., 1:19:41 hrs., 4:36:19 hrs., 4:59:46 hrs., there were two outgoings and two incomings calls on his mobile. On the same day, accused Harish Mandvikar was in continuous contact with accused Pravin Shetty by making the calls at 8:33:06 a.m., 10:01:19 a.m., 10:39:53 a.m., 10:51:55 a.m., 10:45:33 a.m., 10:14:53 a.m., 10:00:10 a.m., 10:32:11 a.m., 10:33:45 a.m., 10:53:54 a.m., 11:02:35 a.m., 12:56:23, 12:58:42, 11:20:58, 11:29:47, 11:43:15, 11:58:01, 12:08:04, 12:21:55, 12:35:57 p.m., 01:02:51 p.m., 01:01:43 p.m., 01:04:14 p.m. and 01:12:32 p.m.. It is also revealed that at the same time, he was also in contact with Anthony Raj Nanya ...150/
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Dravid on his mobile no. 9833110177. This shows that accused Harish Mandvikar and Kiran Amle were in constant touch with Ajimuddin Shaikh, Pravin Shetty as well as with Anthony Raj Nanya Dravid. The call detail record (Exh.690) of mobile no. 9833507523 of Harish Mandvikar shows that he received phone call from accused Suhas Roge on his mobile no. 9920960871, on 11/6/2008, at 22:04:48 hrs. as well as on 13/6/2008 at 10:18:49 hrs. and 15:52:26 hrs.
180.
Upon perusal of call detail record (Exh.688) of mobile no. 9833110177 of Anthony Raj Nanya Dravid, it is revealed that he received as well as made call to Harish Mandvikar on his mobile as well as the mobile of Kiran Amle (mobile phone no. 9867547490) between 8:21:21 hrs., 9:27:22 hrs., 10:31:23 hrs., 10:56:33 hrs., 10:48:53 hrs., 11:26:30 hrs., 11:38:30 hrs., 13:56:37 hrs., 14:50:58 hrs., 14:54:57 hrs., 15:06:14 hrs., 15:10:41 hrs., 15:15:51 hrs., 15:58:19 hrs., 16:07:19 hrs., 16:53:60 hrs., 16:55:48 hrs., 18:57:51 hrs., 21:04:49 hrs., 21:10:47 hrs., 22:20:10 hrs.. This shows that on the day of the incident, accused Harish Mandvikar was also in contact with Anthony Raj Nanya Dravid. ...151/
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181.
On perusal of call detail record of accused Jaya Chheda of mobile no. 9833418884, it appears that on 12/6/2008, she received one incoming call at 15:24:26 hrs. and she called the Advocate Somet Shirsat on his mobile at 19:34:37 hrs., It is revealed from the call detail record (Exh.689) that she made contact with accused Suhas Roge on his mobile no. 9930159144 at 1:59:03 hrs. and 3:00:22 hrs..
182.
Upon perusal of call detail record of mobile no.9930159144 (Exh.687) (which was with Suhas Roge), it is revealed that on 15/5/2008, at 21:18:57 hrs., he received the phone from Kiran Pujari as well as on 13/6/2008, he made phone call to approver Kiran Pujari on his mobile no.9870557511, at 13:52:54 hrs. & 13:56:32 hrs, 17:23:29 hrs., 17:39:13 hrs. 17:46:06 hrs.& 20:06:04 hrs..While comparing the same with call detail record (Exh.635) of mobile no.9870557511,it is also found that Kiran Pujari made call on 15/5/2008,at 21:19:03 hrs.as well as on 13/06/2008,he received call from Suhas Roge at 13:52:48 hrs.,13:56:26 hrs.,17:23:24 hrs., 17:39:08 hrs., 17:46:02 hrs. & 19:02:16 hrs.. Thereby, it is brought on record that accused Suhas Roge contacted with Kiran Pujari on 15/5/2008 as well as on 13/6/2008 from time to time.
...152/
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183.
The call detail record (Exh.694) pertaining to mobile no. 9967736462 of Pravin Shetty shows that on 13/6/2008, he was receiving the calls from mobile no. 9867547490 (which belongs to Kiran Amle), between 8:33:06 a.m., 10:01:19 a.m., 10:39:53 a.m., 10:45:33 a.m., 10:51:55 a.m., 10:53:54 a.m., 11:25:16 a.m., 11:47:32 a.m., 12:12:21 p.m., 10:00:10 p.m., 10:31:30 p.m., 10:32:11 p.m., 10:33:45 p.m., 11:02:35 p.m., 11:14:53 p.m., 12:02:18 p.m., 12:26:12 p.m.. Thereafter, at 1:00:40 p.m., 1:2:58 p.m., 1:6:00 p.m., 12:40:14 p.m., 01:07:08 p.m., 01:08:41 p.m., 01:16:49 p.m.. This shows that since morning 8.33 a.m., accused Pravin Shetty was receiving instructions from Harish Mandvikar from time to time at different places.
184.
It is revealed from call detail record (Exh.700) of mobile bearing no. 9867547490 that on 13/6/2008, he was in contact with 9833110177 of Anthony Raj Nanya Dravid at 11:20:13 hrs., 01:50:21 p.m., 02:59:58 p.m., 04:46:51 p.m., 04:47:48 p.m., 04:49:32 p.m., 11:32:14 a.m., 02:44:41 p.m. and 02:48:39 p.m.. At the same time, he is also in contact with Ajimuddin Shaikh on his mobile no. 9324260303 at 12:20:42 p.m., 01:49:41 p.m., 04:3619 p.m. and 04:59:46 p.m... At the same time, he also contacted with mobile of ...153/
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accused Pravin Shetty bearing no. 9967736462 between 12:56:23 p.m., 12:58:42 p.m., 11:29:47 a.m., 11:43:15 a.m., 11:58:01 a.m., 11:08:04 p.m., 12:21:55 p.m, 12:35:57 p.m, 01:02:51 p.m., 01:01:51 p.m., 01:12:32 p.m. and thereafter, there was no contact between mobile no. 9867547490 and 9967736462. This circumstance supports the prosecution case that after the incident, there was no contact between mobile of Pravin Shetty and mobile of Kiran Amle which was in possession of Harish Mandvikar. Possibility of loss or falling down his mobile immediately after the incident cannot be ruled out.
185.
It is the case of the prosecution that immediately after the incident, there was no contact between the mobile of Pravin Shetty bearing no. 9967736462, after near about 1:12:30 p.m.. Thereafter, accused Pravin Shetty ran away from the spot and went to the Hotel Sai Kutir. Call detail record (Exh.700) shows that at about 5:5:14 p.m., he called on the landline no. 2143320558 P.C.O. of Hotel 'Sai Kutir'. It has come in the evidence of P.W.24 Daulat Bade and P.W.25 Nitin that one call has been received to the person who covered his face by bandage/handkerchief and they handed over the receiver to accused no.1 Pravin Shetty. Thereby, the testimony of P.W.24 and P.W.25 supported by call detail record (Exh.700). In such situation, it ...154/
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is obvious on record that at the relevant time, i.e. 05.05 p.m., accused Pravin Shetty reached Hotel Sai Kutir, Wadkhal Naka.
186.
The CDR (Exh.700) also shows cell Id of different incoming & outgoing calls. By examining P.W.66 Chetan More, prosecution has filed the cell Id details on record and cell Id. address (Exh. 701) as well as call detail record of mobile no. 9967736462 of accused no.1 (Exh.702) which were issued by Bharti Airtel, Pune, which bears incoming calls from 9867547490, between 12:58:41 to 1:12:31 p.m. in which it is mentioned that mobile no. 9967736462 whose location at 1:12:31 p.m. was gate no. 36/2A, A/P at Post Wave Wadkhal, Taluka Pen, District Raigad. This clearly shows that at the time of the incident, accused no.1 was driving the said vehicle within the cell Id of Wave Wadkhal,Taluka Pen,District Raigad. The call detail record (Exh.700 & Exh.702) and cell Id address (Exh.701 & Exh.703) are issued along with certificate (Exh.699).
187.
It is also revealed from the record that mobile no. 9867547490 belongs to accused Kiran Amle. He made call to Pravin Shetty at 1:12:32. At the relevant time, their cell Id was 50783. As ...155/
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per Exh.701, cell Id address of 50783 is open plot of Mr. Gopal Mhatre, Survey no.36, Raigad. It is to be noted here that all these cell Id are of different companies as they are having different numbers. It has come in the evidence that on the day of the incident, accused Harish Mandvikar took Swift car of bearing no.MH02AP
4563 of J.M. Nadar and Kiran Amle was driving the same. This shows that by using the mobile of Kiran Amle, accused Harish Mandvikar was giving instructions to accused Pravin Shetty. The cell Id of mobile no. 9867547490 which is belongs to Kiran Amle between 11:20:58 a.m. to 1:12:32 p.m. shows that they were chasing the vehicle Scorpio of Suresh Bhagat from Alibaug and reached near the spot and all along were giving instructions to accused Pravin Shetty. All these circumstances clearly established that at the relevant time, accused Kiran Amle was accompanied with accused Harish Mandvikar and he is also one of the conspirator. They were giving instructions to accused no.1 Pravin Shetty. All the propositions made by the prosecution which clearly in support of their case.
188.
(A) Learned Advocate Shri Amit Munde for accused no.5 placed reliance on : The copy of Criminal Appeal No.932 of 2012
The State of Maharashtra v/s. Paulson Joseph Patitra
...156/
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This criminal appeal is arises on the basis of the order of grant of bail by the Special Court under MCOC Act in which it has been held that by using the said SIM could only by incidental and the same was not seem to be reasonable. Such findings are passed while considering the validity of the bail and not on the final decision of the case. Therefore, the principle laid down in the above cited ruling is not helpful to the accused at this stage, as the facts are different. (B) Learned Advocate Shri S.R. Pasbola, as well as Ld. Spl. P.P. Ms. Kalpana Chavan placed reliance on :
(i)
State (NCT OF DELHI) V/s. Navjot Sandhu Alias Afsan Guru, 2005 SCC (Cri) 1715, = 2005 AIR SCW 4148, in respect of admissibility and accuracy of telephonic record as well as on the point of conspiracy. In which it has been held that :
(I)
When men enter into an agreement for an unlawful end, they become adhoc agents for one another and have made a partnership in crime. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy. (II) Printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise ...157/
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speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act. I have gone through the principles laid down in the above cited ruling, in which it has been held that it is not necessary that all the conspirators must know each and every detail of conspiracy, as well as the evidentiary value of the call detail report and the subscriber detail report. The principle laid down in the above cited ruling is perfectly applicable to the prosecution than the defence.
189.
I am also guided by the principle laid down in Deepti Anil Devasthali & another v/s. State of Maharashtra, 2009 ALL MR (Cri) 3547, in which accused were arrested and convicted on the basis of other evidence as well as the evidence of cell details of a particular cell phone. By examining the officer of the Tele Communication company, particulars of the incoming and outgoing calls has been proved and it was held that they are preserved and printed electronically and thereby, possibility of manipulation of human being is overruled.
The principle laid down in above cited ruling is squarely applicable to the case in hand since during the trial prosecution has ...158/
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examined the Nodal Officers of the respective tele communication company as a witness and proved the subscriber detail record maintained by the telecommunication company as well as call detail reports and cell Id of the respective cell phones. Thereby, the evidence filed on record by the prosecution has been duly proved. 190.
Considering the evidence on record in respect of subscriber detail record, it is obvious that accused no.1 Pravin Shetty never disputed his subscriber application form (X64). Accused no.7 Jaya Chheda admitted in her statement of accused u/s. 313 of Code of Criminal Procedure that she was having mobile no. 9833418884. It is also admitted that at the time of arrest mobile no. 9920155555 was seized from the possession of the accused no.8 Hitesh Bhagat. Approver P.W.05 Kiran Pujari and P.W.62 Ajimuddin Shaikh admitted mobiles in their possession. Bharati Airtel and TATA Telecommunication issued the certificate u/s. 65(B) of Indian Evidence Act. The call detail record clearly shows that on 15/5/2008, 12/6/2008 and 13/6/2008, accused were in contact with each other as well as with witnesses before the incident and after the incident. The use of mobile by the accused at specific cell Ids. i.e. locations also shows that they were present on the spot i.e. at respective locations, at different timings. ...159/
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191.
The credibility of the CDR is in my view unquestionable since there is in built guaranty of the same being correct unless the system itself is tampered which is not any one's case herein. The entries in CDR are system generated. Plantation of questioned entries therein is ordinarily not possible unless manipulation is done at times and relevant entries from time to time. It is no one's case that relevant entries are manipulated and planted earlier and subsequent entries in CDR. Same difference is in isolated case in the timings in CDR could be due to time lag which sometimes require for the establishment of the record in the system. All these CDR and SDR as well as cell Id record completed the chain of evidence to corroborate the prosecution case. Thereby, prosecution has established the conspiracy and the guilt of the accused. SOME MORE CIRCUMSTANCES & CONSPIRACY
192.
To show the conspiracy between the accused, prosecution has examined P.W.13 Joseph John Madanlal, who runs a STD booth since last 10 years. It has come in his evidence that he know accused Harish Mandvikar since year 2005 as he had settled the dispute of the cricket. He also gave him SRA project in which builder gave him amount of Rs.3 lakhs as an advance, out of which he paid half ...160/
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amount to Harish Mandvikar. When Harish Mandvikar was arrested by Pune police, he accompanied his brother Ashish Mandvikar for his release on bail. He also accompanied his brother Ashish Mandvikar in the year 2000, when MPAD proceeding was initiated against accused Harish Mandvikar. On 20/6/2008, he was called by Alibaug police and recorded his statement. In the year 2008, he was also called by PI Mahale of Unit I and recorded his statement. On 14/8/2008, he was forwarded to Metropolitan Magistrate, 23 rd Court, Esplanade where his statement was recorded. Though he admitted his recording of statements at three times, he did not support the prosecution. Thereupon, learned Spl.P.P. was permitted to cross examine him. During his cross examination by learned Spl.P.P., he denied the contents of portion marked “A” in his statement dated 12/7/2008 that in the month of January 2008, he received Rs.2 lakhs from Bhau i.e. Suhas Roge and also denied the contents of portion marked 'A' and 'B' in his statement dated 20/6/2008 that he made phone call to Bhau (Suhas Roge) on account of demand of cash at the instigation of Harish Mandvikar for his household expenses and thereby, he paid Rs.2 lakhs as well as portion marked 'B' that accused Suhas Roge paid Rs.2 lakhs as per his telephone when accused Harish Mandvikar was arrested in MPDA case. Though he did not support the prosecution in his further cross examination by ...161/
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learned Spl.P.P., he admitted that after recording of his statement before Magistrate he signed the same.
193.
The prosecution has examined P.W.76 API R.D. Waghchaure, who stated that the statement of P.W.13 Joseph John Madanlal was recorded as per his say and portion marked A and B (Exh.752 and Exh.753) are recorded as per his statement. The prosecution also examined the investigating officer P.W.79 P.I. R.P. Mahale. He admitted that while recording the statement of P.W.13 Joseph John Madanlal, he stated that in the month of January and February 2008, he demanded Rs.2 lakhs each from Bhau i.e. accused Suhas Roge and thereby, said portion marks are proved by P.W.79 investigating officer R.P. Mahale (Exh.790). Then learned Metropolitan Magistrate A.D. Kshirsagar recorded the statement of witness P.W.13 Joseph John Madanlal u/s. 164 of Cr.P.C.. Though it was not necessary to examine Metropolitan Magistrate for recording of statement u/s. 164 of Code of Criminal Procedure, prosecution has examined him as P.W.72 A.D. Kshirsagar, who has stated that the statement was recorded as per the version given by the witness Joseph John Madanlal. By examining P.W.72 A.D. Kshirsagar, the then Metropolitan Magistrate has proved statement u/s. 164 of ...162/
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Cr.P.C. dated 14/8/2008 (Exh.737). P.W.13 Joseph Madanlal admitted his signature on Exh.737. During cross examination of P.W.72 Metropolitan Magistrate A.D. Kshirsagar, nothing adverse has been brought on record. Thereby, prosecution proved the testimony of P.W.13 Joseph John Madanlal in respect of demand of amount from time to time from accused Suhas Roge at the instance of accused Harish Mandvikar and acceptance of amount of Rs.2 lakhs. Learned Advocate for the accused raised the objection that procedure followed by the Metropolitan Magistrate while recording his statement is also improper. Therefore, his statement (Exh.737) cannot be read in evidence. P.W.13 Joseph John Madanlal admitted that during the inquiry, he was forwarded to the Court of Metropolitan Magistrate, 23rd Court, Mumbai. Learned Metropolitan Magistrate, who recorded statement as per his say and thereby, he put his signature on Exh.737. It is clear that accused Harish Mandvikar has accepted the amount from Suhas Roge from time to time for the obvious reasons best known to him.
194.
It is the testimony of P.W.08 Joseph Nadar that he is running a business by name 'Freeze Point' at Borivali. He knew Harish Mandvikar because he was friend of his elder brother, who is running STD booth next to his shop. He purchased Maruti Zen car ...163/
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bearing No.MH04BS9412 before 4 ½ years. During the inquiry, he admitted that on 13/7/2008 (sic 13/6/2008) and 15/5/2008, he handed over his Maruti car to accused Harish Mandvikar. Thereby, police (PI Shengle) seized the same by panchanama dated 13/7/2008 which bears his signature. The said Maruti Zen car has been returned to him on a bond of Supratnama.
195.
During his cross examination by learned Advocate Shri Vilas Naik for accused no.3, his testimony remained unshaken. Thereby, it is clear that on 15/5/2008 as well as on 13/6/2008, accused Harish Mandvikar used his Maruti Zen car bearing no.MH04BS
9412 and that too, while commission of the crime.
196.
It has come in the evidence of P.W.09 Mahesh R. Yadav that he is sales manager of “Om Cars” at Borivali (West). It is the showroom of second hand carscumworkshop. Police made the inquiry with him for the transaction of Swift car bearing no.MH02
AP4563 in the month of August 2008. It was sold to accused Harish Mandvikar for Rs.3,45,000/ out of which he paid some amount in cash and some amount by bearer cheque. At the time of handing over the vehicle, signature of purchaser i.e. accused Harish Mandvikar was obtained by him. The original R.C. book, copy of the insurance ...164/
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and the transfer form (Article 1) are shown to him and he identified the same. He identified the accused Harish Mandvikar before the Court. Even after the purchase of car, the documents of the ownership are standsstill in the name of previous owner.
197.
It has further come in the evidence of P.W.09 Mahesh Yadav that one Jatin C. Modi was the owner of the car bearing no.MH02AP4563. R.C. book, insurance cover note and the transfer form are filed on record as Article 1. The forms bears the signature of registered owner. The delivery challan shows that motor vehicle bearing no.MH04AP4563 was purchased by one Malai Parekh. Another delivery challan is also in the name of Harish Ganiga, resident of Borasa Pada, Poisar. It also bears the signature of Harish. In his cross examination by Advocate Vilas Naik, he stated that accused Harish Mandvikar is social worker, working in Kandivali. Despite of cross examination by the Advocate for the accused, testimony of P.W.09 M.R. Yadav remained unchallenge. Thus, it is proved that accused Harish Mandvikar purchased second hand car of one Modi through 'M/s. Om Cars'. Upon perusal of signature of accused Harish Mandvikar with his prepaid application form (X63), I found that his signature tallies with prepaid application form (X
...165/
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63). Thereby, the testimony of P.W.09 Mahesh Yadav corroborates the prosecution case.
198.
It is to be noted that the said second hand car was found in possession of accused Kiran Amle, at the time of his arrest. It be also noted that prior and after the incident, accused Harish Mandvikar paid the value of car to “M/s. Om Cars” in cash. Accused Harish Mandvikar is merely electrician and does not have source of income to have a big amount in excess of Rs.3,45,000/. Therefore, it can be inferred that the amount which has been received while hatching the conspiracy has been utilized for the purchase of said car. All these circumstances clearly shows the participation of accused Harish Mandvikar as well as accused Kiran Amle in the crime. 199.
The witness P.W.18 Sunil Zilu Jangle has been examined by the prosecution is the cable operator of Kandivali, Poisar. It has come in his evidence that he is knowing accused Harish Mandvikar since last 15 to 16 years as he is residing in his area i.e. Indira Nagar. His mobile numbers are 9892958046 and 9892252346. He also knows Anand Tailor and Kiran Amle because they are having tailoring shop and cable business. Accused Pravin Shetty is residing in their area in rented house. On 13/6/2008, when he was in the house, Anand Tailor ...166/
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came to him, at about 4.30 to 5.00 p.m. and told that accused no.1 met with an accident. He told him to give message to Ganya @ Macchi on phone. Therefore, he tried to contact him. He admitted that accused Harish Mandvikar and he himself, are accused in the case of beating which is registered at Kandivali police station. He did not support the prosecution, therefore, learned Spl.P.P. permitted to cross examine him. During his cross examination by learned Spl.P.P., he denied the phone call to Manoj as there was message to accused Pravin Shetty to make phone call to accused Harish Mandvikar. He also denied that Manoj told him that accused Kiran Amle might have accompanied Harish Mandvikar and therefore, they called him and he made phone call on his Airtel handset and it was taken by Harish. Though, he did not support the prosecution, his testimony in respect of knowing the accused Harish Mandvikar, Anand Tailor, accused Pravin Shetty and Kiran Amle is supporting the fact that they all are residing within the same vicinity and they are knowing each other. It has come in his evidence that on the day of the incident, Anand Tailor came to his house and informed that accused Pravin Shetty met with an accident and he tried to approach accused Harish Mandvikar as well as Ganya (P.W.67) as well as on the day of the incidence, Kiran Amle accompanied with accused Harish Mandvikar. ...167/
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200.
P.W.67 Ganesh Rane deposed that since his childhood he is residing in Kandivali (West). He is having mobile bearing no.9167759111. He is also knowing accused Harish Mandvikar, Ashish Mandvikar, accused Pravin Shetty and Kiran Amle as they are the members of DahiHandi Mandal. To break dahihandi, they used to proceed by bus, bike and truck. But he did not know the owner of the truck. He knows Raj Nanya, who is also the member of DahiHandi Mandal. On 13/6/2008, he was in the house. He came to know that the truck met with an accident. He did not support the prosecution, therefore, learned Spl.P.P. sought permission to cross examine him. During his cross examination, he denied that on the day of the incident, when he went to the house of accused Harish Mandvikar, he directed him to reach the accused Pravin Shetty on the motorcycle of accused Kiran Amle to the house of accused Ajimuddin Shaikh. It did not happen that at about 2.00 p.m., he received phone call of Raj Nannya and requested him to wait in the Hotel. He also refused when Raj Nanya came there. He was having one bag and informed that bag contained Rs.10 lakhs and it is to be given to the accused Ajimuddin Shaikh and it has been given to accused Harish Mandvikar and the same has been refused by Ajimuddin Shaikh on the ground that instead of one, seven people were killed. He also denied the then meeting with accused Harish ...168/
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Mandvikar at the house of Kiran Amle and he kept the amount at his house. He further denied that accused Harish Mandvikar asked him to go near Hotel McDonald and he accepted the bundles from one Gotya at the instigation of accused Suhas Roge. He denied portion marked A and B of his statement which are duly proved by investigating officer P.W.79 P.I. Mahale. Though, he did not support the prosecution case regarding the circumstances, the date of offence i.e. 13/6/2008 as well as knowing of accused Kiran Amle, Harish Mandvikar has come on record by the prosecution. It is the settled principle of law that even if the witness did not support the prosecution and supports some part of the contents, thereby, his testimony should not be totally discarded. The portion of his testimony found reliable is in respect of the circumstance of the incident on the day of the incident as well as the message given by the accused Pravin Shetty through Anand Tailor and accused Kiran Amle was with the accused Harish Mandvikar.
201.
P.W.77 Anthony Raj Nannya Dravid, resident of Poisar, Kandivali, Mumbai, stated that he is residing at Borsa Pada since last 20 years. He knows the accused Harish Mandvikar because Harish Mandvikar is the member of DahiHandi Club and they used to play cricket. In the year 2007, they went to Pune with accused ...169/
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Harish Mandvikar, Manoj Gaikwad and Ganesh Rane to attend the birthday of their friend and at the relevant time, quarrel took place over due to dashing the vehicle. On that count, offence was registered against them. He admitted that on 9/6/2008, accused Harish Mandvikar met him. His mobile number is 9833110177. On that day, no amount has been given by Harish Mandvikar for keeping. On 13/6/2008, he had not received a phone call over his mobile from anybody. He never gone to the house of Ajimuddin Shaikh along with Ganesh Rane. He also denied that on 14/7/2008, accused Harish Mandvikar had come to his house. He also denied that he knows the accused Pravin Shetty. He did not support the prosecution and therefore, learned Spl. P.P. was permitted to cross examine him. 202.
In his cross examination by learned Spl.P.P., P.W.77 Anthony Raj Nannya Dravid admitted that Sr.P.I. Mahale called him in the office of DCBCID, in connection with this case and made inquiry with him. But he did not know whether he recorded the statement. He denied handing over of Rs.10 lakhs by Harish Mandvikar @ Ganiga and the same was kept in the cupboard in his house. He also denied that on 13/6/2008, at about 2.30 p.m., when he was present at Satyanagar, Chikuwadi, Borivali (W), he received the call of Kiran Amle over his mobile bearing No.9833110177 and at that ...170/
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time, accused Harish Mandvikar instructed him to give the amount of Rs.10 lakhs to Ajimuddin Shaikh. He also denied that he is knowing Ajimuddin Shaikh because they were using his truck at the time of DahiHandi for 2/3 occasions and he met him at the time of Eid Festival of January 2007 as well as went to his house for condolence on account of death of his sisterinlaw. He also denied that on the day of the incident, at about 3.00 p.m., he and Ganesh went to the house of Ajimuddin Shaikh to hand over the amount of Rs.10 lakhs as instructed by the accused Harish Mandvikar, but he was not present. Therefore, they waited and later on, they offered the amount which was given by Harish Mandvikar.
203.
During cross examination of P.W. 77 Anthony Raj Nannya Dravid, seizure panchanama (Exh.493) dated 14/7/2008 was shown to P.W.77 Anthony Raj Nanya Dravid to which he identified his signature on the panchanama. The witness replied that police obtained his signature on a blank paper. Exh.493 is a panchanama u/s. 27 of the Evidence Act has been drawn by the investigating officer at the instance of accused Harish Mandvikar in which it is mentioned that during inquiry i.e. on 14/7/2008, accused made voluntary statement and laid them at the house of witness Raj Nanya and accordingly, amount was seized from his house. After drawing ...171/
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the panchanama, police obtained his signature on the recovery panchanama (Exh.493). Though P.W.77 refused his signature on Exh.493, it cannot be said that it has been obtained by the investigating officer on a blank paper. When his evidence has been read with the evidence of investigating officer P.W.56 PI K.S. Shengle, his contention cannot be discarded. Thereby, prosecution proved the seizure panchanama of Rs. 8 lakhs from the house of P.W.77 Anthony Raj Nannya Dravid and that too, at the instance of accused Harish Mandivkar.
204.
In his further cross examination by Spl.P.P., P.W.77 Anthony Raj Nannya Dravid denied that he had taken accused Pravin Shetty to the hospital and he signed the medical paper (Exh.471). When his prepaid application form (Exh.757) and xerox copy of passport (Exh.758) was shown to him, he identified his signatures thereon. A bare perusal of signature on prepaid application form (Exh.757), xerox copy of the passport (Exh.758) with signature on medical paper (Exh.471) and signature on recovery panchanama (Exh.493 colly.), shows that they tally with each other. Thereby, the denial by P.W.77 Anthony cannot be accepted. No plausible explanation has been given by the witness under which ...172/
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circumstances he gave signature on blank paper i.e. seizure panchanama (Exh.493). 205.
It is also seen that signature of accused Harish Mandvikar on memorandum panchanama as well as recovery panchanama of amount of Rs.8 lakhs (Exh.493 colly.) are similar to his signature on Vakalatnama, plea and the statement of accused u/s. 313 of Cr.P.C.. In view of the above, it can be inferred that investigating officer seized the amount of Rs.8 lakhs at the instance of accused Harish Mandvikar and the same was seized from the house of P.W. 77 Anthony Raj Nannya Dravid. During the investigation, investigating officer PI Mahale recorded the statement of P.W.77 Anthony, on 14/7/2008. He admitted the first 34 paragraphs of his statement but denied the rest of the paragraphs, which are portions marked A to G. The prosecution proved the portion marks through investigating officer PI Mahale, which are at Exh.791 to 797. Though P.W.77 Anthony Raj did not support the prosecution his testimony is not liable to be entirely thrown away. On the contrary part thereof is found to be cogent and reliable. ...173/
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206.
It has come in the evidence of P.W.39 Arvind A. Modasia (Exh.548) that since last 10 years, he is residing in Borsa Pada Road, Kandivali and doing the business of mobile accessories. His father is tailor since last 10 to 12 years and also running PCO. He knows accused Harish Mandvikar as he used to come to the shop of his father. In the month of January 2008, Poynad police came to his house and took him to Poynad police station. They took him, one Sunil, Balan and 23 others. The police threatened that they will implicate him in false case. Police told that he has to give the statement that some money was found with him and thereby, he signed some blank papers in the police station. He admitted his signature on the memorandum panchanama (Exh.760) and seizure panchanama of Rs.23.50 lakhs (Exh.761). He did not support the prosecution, therefore, Spl.P.P. cross examined him. During his cross examination by learned Spl.P.P. he admitted his mobile bearing no.9321331061, that he used to talk with accused Harish Mandvikar but he did not remember the mobile number of Harish Mandvikar i.e. 9867787230. He denied that on 15/6/2008, at about 7.00 to 7.30 p.m., when he was standing near Ganesh Medical Store, accused Harish Mandvikar came to him and handed over one plastic bag containing the amount of Rs.23.50 lakhs and he handed over the same to his mother to keep it in the cupboard. He also denied that on ...174/
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20/6/2008, Harish Mandvikar along with police came to his house and thereby, he handed over the said bag containing Rs.23.50 lakhs from the cupboard and those notes were of denomination of Rs.500/ and Rs.1000/. He also denied the drawing of panchanama dated 20/6/2008 as well as his statement to that effect.
207.
By examining investigating officer P.W.78 P.I. V.K. More, prosecution proved the portion marked 'A' of recovery of Rs.23.50 lakhs from the house of P.W.39 Arvind Modasia. Upon perusal of the recovery panchanama (Exh.496N), P.W.39 Arvind admitted the same. He denied the signature on the recovery panchanama u/s. 27 of the Indian Evidence Act. It is the case of the prosecution that when accused Harish Mandvikar was in the custody, he made voluntary statement on 19/6/2008, at about 22:25 hrs. and disclosed that amount of Rs.23.50 lakhs has been kept in the house of P.W.39 Arvind and he is ready to produce the said bag. Accordingly, he laid them to the house of witness Arvind Modasia and he produced the said amount at the instance of accused Harish Mandvikar and the same was seized by the police. It is to be noted here that panchas admitted their signatures on the panchanama (Exh.760 and Exh.761) P.W.39 Arvind Modasia also admitted his signature on panchanama. Thereby prosecution has proved this panchanama of recovery u/s. 27 ...175/
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of Evidence Act through investigating officer V.K. More. It also bears the signature of accused Harish Mandvikar on memorandum panchanama as well as on the recovery panchanama. His signature is similar to the one on vakalatnama, statement of accused u/s. 313 and plea. The prosecution proved the seizure of amount of Rs.23.50 lakhs at the instance of accused Harish Mandvikar and that too, from the house of P.W.39 Arvind Modasia. P.W.39 is the friend of Harish Mandvikar and they are residing in the same locality. Call detail record clearly shows that during that period, he made contact with accused Harish on his mobile. Though, he did not support the prosecution, his complete testimony cannot be thrown away. P.W.39 never gave any plausible explanation as to how he made the signature on Exh.762 i.e. seizure panchanama of Rs.23.50 lakhs.
EVIDENCE AGAINST ACCUSED NO.8 HITESH BHAGAT. 208.
To substantiate the charge against the accused no.8 Hitesh Bhagat, prosecution has examined P.W.05 approver Kiran Pujari and his friends P.W.03 Ritesh Pratap Mehta, P.W.42 Rahul Mehta and P.W.43 Adbulla Khan. It has come in the evidence of P.W.05 approver Kiran Pujari that accused Hitesh Bhagat, Suhas Roge and Jaya Chheda met him in Hotel 'Taj' and paid Rs.1 lakh. On the next day, Suhas Roge called him at the house of accused Jaya ...176/
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Chheda for meeting. At the time of meeting, they told him that accused Hitesh Bhagat was attending dance bar and Suresh Bhagat is also not looking the said mataka business. It has come in the evidence that on that count, there were various meetings between him and accused Jaya Chheda, Suhas Roge and Hitesh Bhagat. In that respect, Suhas Roge also met him in his Airoli office. They paid Rs.1 lakh as well as the gifts and cash from time to time to P.W.05 approver Kiran Pujari. They also conducted raid in Vashi office as well as at the office at Lonawala of Suresh Bhagat. In his cross examination, he admitted that he was also having meeting and talks with accused Hitesh Bhagat. He further admitted that he received Rs.1 lakh separately for providing the information regarding Lonawala raid. In his cross examination by Advocate Taraq Sayyed, he admitted that he did not feel that there was enmity between Hitesh Bhagat and his father Suresh Bhagat. Though the said fact is admitted by the accused, his testimony in respect of the meetings with the accused Suhas Roge, Jaya Chheda and Hitesh Bhagat remains unshattered.
209.
By examining P.W.03 Ritesh Mehta, it is brought on record that they are the friends since school days. He accompanied accused Hitesh Bhagat for tour at Hongkong, Bangkok and Dubai for ...177/
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3 to 4 times. All the expenses were borne by Hitesh Bhagat. It has come on the record that three days before 11/6/2008, accused Hitesh Bhagat informed him that air tickets for airbus for Bangkok was booked. Accordingly, they went to Bangkok by flight at about 2.30 a.m. between 12/6/2008 and 13/6/2008 and reached Bangkok after 3½ hrs. He produced original passport (Exh.366), which bears endorsement of their departure. Thereafter, they went to Pataya and stayed in Hotel 'Pataya Shereton Resort'.
210.
It has further come in his evidence that on the day of the incident, at about 8 p.m., Hitesh Bhagat received the phone. He saw that there was some serious talk. It was the call from his mother. She informed him that his father met with an accident and died. Immediately, he contacted with Nikita tours and left the hotel at 4 a.m. and reached Mumbai, on 14/6/2008, at 10.30 a.m.. It has further come in his evidence that the room in Hotel 'Ramada Plaza' was booked in his name. He resided there with accused Hitesh Bhagat. He identified his Email address (Exh.367). In his cross examination, he admitted that apart from Nikita Tours and Travels, he did not make any contact with another travel agency. He further admitted that his statement has been recorded by Metropolitan Magistrate. His testimony remained unshaken.
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211.
The prosecution also examined travel agent P.W.04 Nitin Chavan, who is running the business by name 'Nikita Travels'. It has come in his evidence that in the year 2008, he used to book the tickets through 'Ramkrishna Travels'. As per the telephonic message of Ritesh Mehta and Rahul Mehta, he booked tickets on behalf of Hitesh Bhagat. On 12/6/2008, midnight and 13/6/2008 as well as on 14/06/2008, he made arrangement of air tickets for Hitesh Bhagat and Ritesh Mehta for Bangkok. It has further come in his evidence that in addition to that accused Hitesh Bhagat booked Hotel 'ITC Grand', Hyatt Regency, Hotel Renaissance and SuninSand, Goa. He filed the copies of the bills (Exh.373 colly.) on record. During his cross examination, nothing adverse has been brought on record.
212.
It has come in the evidence of P.W.42 Rahul Mehta that he is a friend of accused Hitesh Bhagat and therefore, he was familiar with the family of Hitesh Bhagat. He was on foreign tours with accused Hitesh Bhagat for number of times. He attended the funeral of deceased Suresh Bhagat on 15/6/2008. Thereafter, he did not meet him. Booking register of Hotel Hyatt Regency (Exh.558) is shown to him and he admitted that it is the signature of his friend Hitesh Bhagat and used to visit foreign countries with him. He also ...179/
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identified his Email Id (Exh.565). By examining P.W.42 Rahul Mehta, it has come on the record that room in Hotel Hyatt Regency was booked in the name of Rahul Mehta whereas accused no.8 Hitesh Bhagat stayed there. 213.
By examining P.W.43 Abdulla Amanulla Khan, it has come on the record that he is knowing accused Hitesh Bhagat as well as Manish Advilkar, because he is personal trainer of body building. During the year 2008, three days after the death of Suresh Bhagat, accused Hitesh Bhagat made phone call to him and called him at Hotel ITC, Parel. On inquiry, he found that room was booked in the name of Manish Adavilkar. After two days, when he went to Hotel Hyatt Regency on the call of Hitesh Bhagat, he came to know that room was booked in his name. Again after two days, he received call from Hotel J.W. Marriott and came to know that room was booked in his name without his permission. Later on, accused Hitesh Bhagat called him at Hotel Ramada Plaza at Juhu and the room was booked in the name of Ritesh Mehta. Thereafter, he met accused Hitesh Bhagat in Hotel Rami Guest Line as well as Hotel Sahara Star at Domestic Airport. Accused Hitesh Bhagat told him that he is intending to engage lawyer for him and his mother from Delhi and thereby, he made contact to Adv. Vikas Pawa through him. In the ...180/
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meantime, he paid Rs.70 lakhs and Rs.30 lakhs through P.W.43 to Adv. Pawa. His testimony remained unshaken.
214.
It has come in the evidence of P.W.38 Rajendra Kamble that since last 5½ years, he was serving as a Team Leader of Finance Kuoni Travels Pvt. Ltd.. He identified the signature of Manager Sanjay Sharma (Exh.546 & Exh.547), which are the bills in the name of Manish Adavilkar through Nitin Chavan. They are the bills of ITC Grand Hotel as well as Tour Club.
215.
By examining P.W.40 Michael Remedious, prosecution proved the bills of Hotel Ramada Plaza for the period from 18/6/2008 to 20/6/2008 in the name of Ritesh Mehta (Exh.551 colly.). P.W.41 Bhushan Rane, Assistant Manager of Hotel Hyatt Regency, admitted the documents of guest registration card (Exh.558A) which bears the signature of accused Hitesh Bhagat and the signature on Exh.558A has been identified by P.W.42 Rahul Mehta that Hotel is booked in his name. P.W.44 Satish Vaidya, ITC Grand, filed xerox copies of the bills in the name of Manish Advilkar (Exh.573) which is booked through Tour Club. By examining P.W.47 Tushar Mali, the hotel bills of Hotel Grand Hyatt (Exh.582 colly.) are brought on record. ...181/
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216.
It has come in the evidence of P.W.58 Preetam Mahadik that in the year 2008, he was working at SunnSand Hotel, Goa. On 13/7/2008, they handed over two mobiles, one SIM card and 34 rough papers and itinerary of Kingfisher Airline regarding travel from Mumbai to Goa. Same has been handed over to P.I. Nigade. Accordingly, panchanama (Exh.637) has been drawn. He also identified the documents as well as mobile and the SIM card (Article 16 to Article 19). In his cross examination, he admitted that he was in the police station for about 2 hrs.. Despite of his detail cross examination, his testimony remained unshaken.
217.
It has come in the evidence of P.W.65 Ajay Pal that on 8/7/2008, at about 10 a.m., when he joined the duty, one of his colleague Raghu instructed him to keep watch on a guest in Room no.403. Though the room was booked in the name of Ritesh Shah, accused Hitesh Bhagat was residing there. When police taken away the guest, he checked the room and found two mobiles and one SIM card and 1011 papers from the toilet cupboard and the same were seized. He also identified the xerox copy of the register (Exh.697).
218.
It has come in the evidence of P.W.14 P.I. D.B. Joshi that after the receipt of the letter from investigating officer, he found that ...182/
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accused Hitesh Bhagat had departed for Bangkok from Mumbai Airport on 13/6/2008 and arrived on 14/6/2008. Accordingly, he filed embarkation form (Exh.441) as well as departure card (Exh.442) which bears the signature of accused Hitesh Bhagat. 219.
The testimony of the prosecution witnesses that accused no.8 Hitesh was residing with his father deceased Suresh Bhagat at Worli. Even though, he was having visiting terms with his mother. It is but natural that being a mother, he visited her house. But, it has come on the record that he was not only visit his mother but attended the meeting of accused Suhas Roge, Jaya Chheda and Kiran Pujari. Being a member of conspiracy, as per the instructions of accused Suhas Roge and Jaya Chheda, he chooses to remain absent before Alibaug Court, on 15/5/2008 and 13/6/2008. It reveals from the exemption application (Exh.358) that it was sought on the ground that doctor had advised to take bed rest. Whereas as per the evidence, on 13/6/2008, at about 2.30 a.m., he departed from India and went to abroad. The testimony of P.W.04 N.P. Chavan clearly transpires that as per the instruction of accused Hitesh Bhagat, he booked air tickets three days prior to their departure. The evidence of P.W.04 N.P. Chavan has been fortified by P.W.14 PI D.B. Joshi. It has come in his evidence that at the time of departure, accused Hitesh ...183/
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Bhagat filled up the embarkation form (Exh.442). The said fact as well as the testimony of P.W.14 PI D.B. Joshi remained unchallenged. This shows that being a part of the conspiracy, accused no.8 Hitesh Bhagat left India and chooses to remain absent before court on false ground. All these circumstances shows the state of mind of accused no.8 regarding preplanning. His association in the meetings with approver and other accused supports the prosecution case. He booked the air tickets of Bangkok 3 days prior to departure. Thereafter, he went to Bangkok immediately to create impression that he was absent on the fateful day. This shows that he was having knowledge about the conspiracy. 220.
It has further come on the record that thereafter, accused Hitesh Bhagat was residing in various Hotels and that too, in the name of Ritesh Shah, Manish Adavilkar as well as in the name of Abdulla Khan. The testimony of P.W.42 Rahul Mehta is found to be cogent and reliable in support of the prosecution case. The evidence filed on record is clear that after the death of Suresh Bhagat, accused Hitesh Bhagat stayed in the various Hotels in the name of his friends by hiding his identity. This would not have been the case had he not conspired murder of Suresh Bhagat and was party to the execution of the plan. It has brought on record by P.W.43 Abdulla Khan that he is ...184/
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knowing about the present case and thereby, he tried to contact the Advocate Pawa. Thereby, the evidence is found to be consistent with the prosecution case. All these circumstances shows his association in the meeting with the approver. This shows that he was member of the conspiracy and thereby after the cremation/funeral of his father, accused no.8 hidden his identity and stayed in different Hotels in different names support the circumstances.
221.
It has come in the evidence of P.W.48 API Mohd. Azam Yusuf Patel that he recorded the statement of P.W.06 M.M. More as per the direction of investigating officer PI Mahale. By examining P.W.50 PSI S.T. Dhamankar, it has come on record that on 17/6/2008, he received secrete information that accused Suhas Roge and Harish Mandvikar are wondering in Somanath Chowk at Daman. Thereby, he reached Daman with staff and arrested both of them by arranging the trap. He took both of them u/s. 41(a) of Code of Criminal Procedure and brought them to the office of Unit III. Thereby, he prepared the arrest panchanama (Exh.592). At the time of arrest, he seized the currency notes of Rs.3200/ and mobile (Article 13) from the possession of Suhas Roge. On 20/6/2008, he arrested the accused Kiran Amle from Dahisar by arranging the trap with Swift car bearing no.MH02AP4563. Accordingly, he proved the arrest ...185/
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panchanama (Exh.593). The testimony of P.W.14 Sr.P.I. D.B. Joshi, P.W.48 API Mohd. Azam and P.W.50 P.S.I. S.T. Dhamankar found to be corroborate to the prosecution case.
222.
P.W.51 API V.D. Gaikwad drew the panchanama of seizure of mobile of Harish Mandvikar from Santosh Gupta (Exh.604). By examining P.W.53 PI S.V. Raut, it has come on the record that as per the direction of investigating officer P.I. More, he carried out the search of the house of Ajimuddin Shaikh and accused Pravin Shetty and drawn the panchanama (Exh.614). By examining P.W.56 PI K.S. Shengale, prosecution prove the memorandumcumseizure panchanama of amount of Rs.4 lakhs (Exh.627) and seizure of amount of Rs.8 lakhs (Exh.493).
223.
By examining P.W.73 IO PSI B.Z. Pawar of police station Panaji, it has brought on record that Manager Ajay Pal (P.W.65) has brought two mobiles, one SIM card and 34 papers. Accordingly, he gave information to Crime Branch, Mumbai. Accordingly, P.W.74 PI Nigade of DCBCID, Unit I, visited Panaji police station and drew the seizure panchanama (Exh.637). Thereby, prosecution proved the seizure of two mobiles, one SIM card and some papers from Hotel SunnSand, Goa.
...186/
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224.
Investigating officers P.W.71 G.C. Hiremath, P.W.78 V.K. More, P.W.79 R.P. Mahale and P.W.80 ACP Ashok Duraphe proved the contradictions and omissions in the statements of the witnesses as well as proved the respective panchanamas. 225.
Learned Senior Advocate Shri Adhik Shirodkar placed reliance on : (i) Tahsildar Singh and another v/s. State of U.P., 1959 Cri.L.J. 1231, in which it has been held, “it is the settled principle of law in respect of contradictions and omissions as well as its liability while terminating the prosecution evidence”.
(ii) Ashish Batham v/s. State of M.P., (2002) 7 SCC 317, in which the principle laid down in respect of the standard of proof i.e. graver the charge greater should be standard of proof. (iii) Yudhishtir v/s. The State of MP, 1971(3) SCC 436, in which it has been held, “Corroboration for any evidence given by a witness may be found necessary when a court is not inclined to reject the evidence of the witness to be false, but when the evidence of a witness has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances”.
(iii) Ramdas Nayak v/s. A.R. Antulay, 1993 (1) Bom. C.R. 185, in which it has been held, “previous statement recorded by Court ...187/
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having no jurisdiction to try the matter. Reliance for purpose of contradicting witness. So far as section 145 is concerned, the fact the statements were recorded by Court having no jurisdiction is irrelevant. Despite lack of jurisdiction in the Court which recorded the statement, it still remains as previous statement for purpose of section 145.” I have gone through the principles laid down in the above cited rulings. They are the principles in respect of proving of contradictions and omissions as well as standard of proof and corroboration of evidence. All these principles have been perfectly applicable to the case in hand.
EDITOR OF MIDDAY
226.
P.W.35 Vinodkumar Menon, Editor of newspaper 'Mid
Day' deposed that two days prior to 11/12/2006, Deputy Commissioner of Police, New Bombay, called the Press Conference of Media about the arrest of Suresh Bhagat in drug case. When Suresh Bhagat was passing through the room at police station he spoke with Suresh Bhagat. On that basis he prepared the news and the same was published in Gujarathi newspaper Article X53 and X53A. The witness has confirmed the news item referring the statement then ...188/
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given by deceased Suresh Bhagat to him about the impleading him by his estrange wife Jaya Chheda for grabbing his Mataka business. 227.
In his cross examination, he admitted that though his report is in English, news was published in Gujarathi MidDay. He admitted that he spoke with Suresh Bhagat when he was in police custody at the time of press conference. It was suggested that Suresh Bhagat was articulating his defence at that time. The witness has stated that, because of shortage of time, he did not get the opportunity to ask base of his defence. Despite his detail cross examination, the facts remains on record that at the relevant time, P.W.35 attended press conference in the office of the DCP, New Bombay, when deceased Suresh Bhagat was arrested. Though it is admitted that press report has no evidentiary value, even then fact remains that since year 2006, deceased Suresh Bhagat felt that his wife Jaya Bhagat was intending to grab mataka business by joining the hands with her paramour. 228.
P.W.30 Latish @ Satish Narayan Shetty deposed that in the year 2007, when he was in the search of the job, he met accused/approver Kiran Pujari as he was a social worker. Thereby, in the month of October 2007, he joined the duty of a bodyguard of ...189/
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accused Jaya Chheda, who was residing at Ghatkopar and owner of Kalyan mataka business, on a daily wages of Rs.500/. He did not support the prosecution. Therefore, Ld.Spl.P.P. was permitted to cross examine him, in which he admitted that he visited Esplanade Court at the instance of Kiran Pujari along with his driver Rahul Kurtadkar and there was exchange of words between the police and Kiran Pujari and thereafter, they were permitted to go. Though, he did not support the prosecution, fact remains on record that P.W.20 Rahul Kurtadkar was the driver of the accused/approver Kiran Pujari as well as he worked with accused no.7 Jaya Chheda as bodyguard and she was doing mataka business as well as approver Kiran Pujari was having visiting terms with accused Jaya Chheda. 229.
At the same time, considering the evidence on record of P.W.02 Adv. Somet Shirsat, it has come on the record that accused Jaya Chheda as well as accused Suhas Roge were instructing him in respect of absence of accused Hitesh Bhagat. It has come in the evidence of P.W.15 Vinod Naik and P.W.16 Joseph Rodrigues that, accused Jaya Chheda and Suhas Roge were meeting frequently. The testimony of P.W.05 approver Kiran Pujari is also crystal clear regarding his meetings with Jaya Chheda at the instance of Suhas Roge in her house, transpires the conspiracy to grab the mataka ...190/
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business of deceased Suresh Bhagat. All these circumstances and following evidence linked together about the involvement of accused Jaya Chheda by joining the hands with Suhas Roge, Kiran Pujari and Hitesh Bhagat and other accused.
DYING DECLARATION :
230.
Section 32 (1) of Indian Evidence Act reads thus :
“S.32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.”
Section 32(1) is an exception to the general rule that hearsay evidence is not admissible. This rule excluding hearsay evidence is relaxed so far as the statement contained in Section 32 and Section 33 of Evidence Act. Under this Section, written or verbal ...191/
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statements of relevant facts made by a person, who is dead are relevant under the circumstance when it relates to cause of his death. Words “dying declaration” means a statement written or verbal of relevant facts made by a person who is dead. Evidence of dying declaration is admissible not only against the person actually causing death but also against other persons participating in causing death. In the present case, Commissioner of Police received the complaint/representation of deceased Suresh Bhagat on 13/3/2008 regarding the threats of murder at the hands of accused. Upon perusal of Exh.747, it reveals that it was received by the office on the same day. Accordingly, it was endorsed by concerned on 13/3/2008, 15/3/2008, 28/3/2008, 4/4/2008 and 26/5/2008. It has come on the record that since there was no response from the Commissioner of Police, deceased Suresh Bhagat filed Writ Petition before the Hon'ble High Court on 2/5/2008. 231.
P.W.75 Advocate S.T. Gaikwad deposed that as per the telephonic message, he met the deceased Suresh Bhagat, who informed him about the danger to his life and requested to prepare the complaint for giving to the Commissioner of Police. Accordingly, he prepared the draft on 23 occasions in which changes were made by Suresh Bhagat. After finalisation of the representation, he as well ...192/
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as Suresh Bhagat personally handed over the same to Mr. Gafoor, Commissioner of Police. The complaints is at Exh.747. It has further come in his evidence that by filing complaint, Suresh Bhagat demanded the police protection for himself. However, for a quite long period, there was no response from the Commissioner, therefore, he decided to file Writ Petition before the Hon'ble High court. Accordingly, as per the direction of Suresh Bhagat, he prepared and filed Writ Petition bearing no.1013/2008 (Exh.748). During the cross examination, certified copy of the order of Writ Petition (Exh.749) has been filed on record by the defence. In his cross examination, it has come on the record that he prepared the representation/complaint as well as writ petition on the instructions of the deceased Suresh Bhagat. Despite of his detail cross examination, his testimony remains intact. 232.
Learned Spl.P.P. placed reliance on (i) Suresh Raghunath Kochare and another v/s. The State of Maharashtra and another, 1992 Cri.L.J. 2455, in which it has been held, “statement made by the deceased regarding her harassment for demand of dowry at the hands of husband is admissible u/s. 32(1) of Evidence Act as a dying declaration”.
(ii)
Kans Raj v/s. State of Punjab and others, 2000 ...193/
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Cri.L.J. 2993, in which it has been held, “Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death”.
The principle laid down in above cited rulings is regarding the dying declaration are well settled.
233.
I am guided by the principle laid down in Rattan Singh v/s. State of Himachal Pradesh, AIR 1997 SC 768, it has been held, “a young housewife Kanta Devi was living with inlaws in village and her husband was residing away from his family. Assailant was ex
army man developed some infatuation for Kanta Devi and he started doting on her with libidinous designs, but she was not willing to reciprocate his oblings. On these background, accused harassed her. When she found him incorrigible she complained to the police about his lewd conduct. Assailant gatecrashed into her courtyard during the odd hours of the night and fired towards her. The statements made at the time of previous complaint are treated as to the circumstance of the transaction which resulted in death. Her statement before the death that accused was standing with gun turning out the circumstance of transaction which resulted in her death are held as dying declaration.”
...194/
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The principle laid down in above cited ruling is clears that circumstance of the transaction which resulted in her death is apparently wider amptitude than same circumstances which caused death and the former statement falls within the purview of Section 32 of Evidence Act. 234.
In the case in hand as immediately three months prior to the date of the incident, deceased Suresh Bhagat lodged the complaints/representations before the Commissioner of Police and later Writ Petition before the Hon'ble High Court with specific allegation that there is a danger to his life at the hands of Suhas Roge, Jaya Chheda, Hitesh Bhagat and Kiran Pujari. The fact that Hon'ble High Court disposed of the Writ Petition does not mean that statement made by the deceased Suresh Bhagat therein that there is a threats to his life at the hands of Jaya Chheda, Suhas Roge, Kiran Pujari and Hitesh Bhagat have been dismissed on the merits by the Hon'ble High Court. It cannot be said that Hon'ble High Court has closed the matter even in respect of considering the issue whether the statements constitutes dying declaration which questioned in my view squarely falls for the consideration of this case.
...195/
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235.
The statements (Exh.747 and Exh.748) clearly constitutes dying declaration therefrom cannot be held that the circumstances stated in Exh.747 and Exh.748 led to the death of deceased Suresh Bhagat. The dying declaration in the list supports the prosecution evidence which is independently prove the guilt of the above named accused. 236.
Learned Senior Advocate Shri Adhik Shirodkar submitted that after the death of the deceased Suresh Bhagat, his writ petition is contested by his brother Vinod Bhagat through Advocate Ponda. The Hon'ble High Court has been disposed of writ petition on the ground that it is vague and not supported by the documentary evidence as well as allegations are in the nature of prima facie defence in those cases. Though, the Hon'ble High Court disposed of the writ petition, it cannot be denied that at the relevant time, deceased Suresh Bhagat received the threats at the hands of accused. The circumstances on record clearly shows that accused no.4 Suhas Roge, approver Kiran Pujari, accused no.7 Jaya Chheda and accused no.8 Hitesh Bhagat hatched the conspiracy and resultantly, he died. Thereby, the objection raised by the defence has no substance.
...196/
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237.
In the complaint/representation (Exh.747) as well as in the writ petition (Exh.748), deceased Suresh Bhagat stated regarding the threats of murder as well as implication of false case of possession of drugs and arms with a motive to extort money from his estranged wife Jaya Bhagat @ Jaya Talakshi Chheda, her paramour Suhas Roge, Kiran Pujari and his son Hitesh Bhagat. This court is not concerned in the implication of false case. The contents made in writ petition and in the complaint are self explanatory. The complaint is a written statement of deceased Suresh Bhagat about the threats. The said written statement is relevant because on 13/6/2008, he died in mishap. Thereby, said written statement of dead person which relates to the cause of his death is nothing but the dying declaration. Thereby, I am of the opinion that the provisions of Section 32(1) of Evidence Act, are squarely applicable to the complaint (Exh.747). Therefore, it will be just and proper to treat the same as a dying declaration.
238.
It is to be noted here that in the present case, there is no direct evidence. In fact, the facts of the case are such that there could be no direct evidence. Most of the evidence is based on the circumstances. The prosecution relied on the testimony of approver, statement of witnesses u/s. 164 of Cr.P.C., extra judicial confession ...197/
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made by accused no.4 Suhas Roge, call detail record and recovery of the mobiles from the accused. Prosecution proved the recovery of amount of Rs.8 lakhs, Rs.23.50 lakhs at the instance of accused Harish Mandvikar and recovery of Rs.4 lakhs at the instance of approver Kiran Pujari u/s. 27 of Evidence Act. The said recovery has been proved through investigating officer and the witnesses. Prosecution also proved that the accused hatched the conspiracy for the commission of murder of deceased Suresh Bhagat. 239.
(A) Ld. Senior Advocate Shri Adhik Shirodkar placed reliance on :
(i)
S.P. Bhatnagar v/s. State of Maharashtra, (1979) 1 SCC 535, in which it has been held, “in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human ...198/
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probability the act must have been done by the accused.”
(ii)
Balu Sonba v/s. State of Maharashtra, (2002) 7 SCC 543, in which it has been held, “when court placed reliance on the circumstantial evidence, it is necessary that chain of evidence is to be completed”.
(iii) Ram Singh v/s. Sonia and others, (2007) 3 SCC 1, in which it has been held, “each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been indicated by this Court that there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions”. The principles laid down in the above cited rulings are cardinal principles of law and the same are duly fulfilled to the present case in hand. ...199/
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240.
(B) Ld. Advocate Shri Vilas Naik placed reliance on :
(i)
Jaharlal Das V/s. State of Orissa, (1991) 3 S.C.C. 27 = AIR 1991 SC 1388, in which it has been held, the circumstantial evidence in order to sustain the conviction must satisfy three conditions:
(I)
the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(II)
those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused;
(III) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. (ii)
State (Delhi Admn.) v/s.V.C.Shukla & Anr., AIR 1980 S.C. 1382, in which it has been held, “in order to prove a criminal conspiracy which is punishable under Section 120B, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence.”
(iii) N.J. Suraj V/s. State represented by Inspector of police, (2004) 11 S.C.C. 346, in which it has been held, while holding the ...200/
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motive on the basis of circumstantial evidence alone cannot form the basis for conviction. (iv) P.K. Narayanan V/s. State of Kerala, 1995 S.C.C. (Cri) 215, in which it has been held, motive and preparation by themselves do not constitute conspiracy. Criminal conspiracy can be proved by direct or circumstantial evidence. Circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy. Such circumstances must be incapable of any other explanation. Mere suspicion and surmises or inferences unsupported by cogent evidence not sufficient. (v)
Hanuman S/o. Tulshiram Jadhav & Anr. V/s. State of Maharashtra, 2011 ALL MR (Cri) 930, in which it has been held, neither the chain was established to the circumstances formulated against the accused nor circumstance were established accused are entitle to get the benefit. I have gone through the above cited ruling, in which the principles of circumstantial evidence as well as conspiracy has been elaborately discussed. I have already discussed the requisite test are fulfilled in this case.
...201/
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241.
Ld. Advocate Shri A.R. Rasal placed reliance on :
(i) Varkey Joseph V/s. State of Kerala, AIR 1993 S.C. 1892, in which it has been held, “suspicion is not substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.” (ii)
Pedala Veera Reddy V/s. State of Andra Pradesh & Ors., AIR 1990 S.C. 79, in which it has been held, “strong suspicion against accused cannot take place legal proof of accused” (iii) State of U.P. V/s. Sukhbasi and Others, AIR 1985 S.C. 1224, in which it has been held, to substantiate a charge under S.120B of the Code, there must be a criminal conspiracy at least between two or more persons. I have gone through the above cited rulings. The principles laid down in the cited supra are the settled position of Law. There is, however, no missing link in the circumstantial evidence in this case.
242.
Ld.Advocate Shri Amit Munde placed reliance on :
Vithal Tukaram More & Ors. V/s.State of Maharashtra 2002 S.C.C.(Cri) 1555, in which it has been held, “to prove the guilt of the accused on the basis of circumstantial evidence prosecution has to ...202/
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prove the essential ingredients i.e. (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature; (c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. But, the circumstantial evidence in the present case falls short of the required standard of proof.” 243. Learned Advocate Shri Jethmalani placed reliance on:
A.Deivendran V/s. State of T.N., AIR 1998 S.C. 2821, in which it has been held, the evidence of the approver implicating several accused persons in commission of the offence could not only be corroborated generally but also qua each accused. But that does not mean that there should be independent corroboration of every particular circumstance from an independent source. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true. Corroboration also could be both by direct of circumstantial evidence. I have gone through the above cited ruling. The principles laid down in the above cited rulings are helpful to the prosecution though the authority is cited by the defence.
...203/
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244.
Learned Advocate Shri S.R. Pasbola placed his reliance on:
(i)
Pakala Narayana Swami V/s. Emperor, AIR 1939 P.C. 27, in which it has been held, “circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant, i.e. resgestae”. (ii)
Sharad Birdhichand Sarda V/s. State of Maharashtra, 1984 S.C.C.(Cri) 487, in this case it is held, “when the case is based on circumstances evidence and where two possibilities come forward i.e. one of commission of crime and the other of innocence are reasonable possible, accused entitled to benefit of doubt.” (iii) Vinay D. Nagar V/s. State of Rajasthan, (2008)2 SCC (Cri) 666, in which it has been held, “circumstances of transaction which resulted in his death, prosecution has to prove strong motive. Statement of deceased made u/s.161 of Cr.P.C. during investigation in abduction case not admissible u/s.32(1) to prove the motive of accused to eliminate the deceased.” (iv)
Sampath Kumar V/s. Inspector of police, Krishnagiri, (2012)4 S.C.C.(Cri) 124, in which it has been held, “when the case is based on the circumstantial evidence motive alone ...204/
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can hardly be a ground for conviction.”
(v) John Pandian V/s. State Rep. by Inspector of police, T. Nadu, 2011(1) Crimes 1 (S.C.), in which it has been held, “all conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion, of the plan would not constitute conspiracy. Each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible.” The principles laid down in the above cited rulings are the cardinal principles of circumstantial evidence. They are not helpful to the defence but in fact supports the prosecution.
245.
SPP Ms. Kalpana Chavan placed reliance on :
(i)
Sidhartha Vashisht @ Manu Sharma V/s. State (NCT of Delhi), 2010ALL MR(Cri)1627 (S.C.), in which it is held, "the phone call details showed that the accused were in touch with each other which resulted in destruction of evidence and harboring. Thus the finding of the trial Court that in the absence of what they stated to each other is of no help to the prosecution is an incorrect appreciation of evidence on record. A close association is a very ...205/
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important piece of evidence in the case of circumstantial evidence. The evidence of phone calls is a very relevant and admissible piece of evidence.”
(ii)
Mohd. Khalid V/s. State of W.B., (2002) 7 SCC 334, in which it is held, "no overt act need be proved to establish criminal conspiracy. Proof of conspiracy can be by direct evidence, though the same is rarely available or by circumstantial evidence. Circumstances proved before, during and after the occurrence should be considered to decide complicity of the accused. Confession of coaccused, even without corroboration, can be taken into consideration.”
On perusal of both these citations, it is held that call detail record is a very important piece of evidence of close association of accused and thereby, it is admissible piece of evidence. At the same time, circumstances proved, during and after the occurrence, can be taken into consideration. Thereby, the principles are perfectly applicable to the case in hand.
246.
During the arguments, Ld. Spl.P.P. and Advocates for the defence placed reliance on certain other aspects of the law. I am of the opinion that it is necessary to mention citations as under :
(A) Ld. Spl.P.p. Ms. Kalpana Chavan placed reliance on :
Sucha Singh & anr. V/s. State of Punjab, 2003ALL ...206/
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MR(Cri)2346 (S.C.), in which it is held, "Maxim "falsus in uno falsus in omnibus". Falsity of particular material witness or material particular would not ruin it from the beginning to end. It is the duty of Court to separate grain from chaff. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that guilty man, does not escape. Both are public duties.” (B)
Ld. Sr. Advocate Shri Shirodkar placed reliance on:
M. Abbas v/s. State of Kerala, (2001) 10 SCC 103, in which it has been held, “Between 'may be true' and 'must be true' there is a long distance to travel. If the prosecution has failed to travel that distance through any unimpeachable evidence. The case of the prosecution has not been established beyond reasonable doubt. In such situation, accused is not required to prove his defence beyond reasonable doubt, but only by preponderance of probabilities.”
(C) Ld. Advocate Shri Vilas Naik placed reliance on :
(i)
Balakrushna Swain V/s. State of Orissa, 1971 SCC (Cri.) 313, in which it has been held, “much reliance cannot be placed on the evidence of a witness when for no justifiable reason he was not examined by the investigating officer for a number of days ...207/
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particularly when the witness is found to be telling falsehood on material aspects of the case and tries to conform to the evidence of other witnesses.” (ii)
Mulak Raj & Others V/s. State of Haryana, AIR 1996 S.C. 2868, in which it has been held, “when no satisfactory evidence to show whether the accused had taken part in killing strong suspicion cannot take place of proof and thereby accused are entitle for benefit of doubt.” (iii) Ramesh Baburao Devaskar & Ors. V/s. State of Maharashtra, 2008 ALL MR (Cri) 293 (SC),
in which it has been held, “while appreciating the evidence on the point of motive proof of motive by itself may not be a ground to hold the accused guilty.” (iv)
Rambilas and Ors. V/s. State of M.P., 1997 CRI.L.J. 4649, in which it has been held, “deceased being a notorious person had many enemies in and around village. Possibility of somebody else other than accused being the assailants cannot be ruled out.” (v)
Dr. Sunil Kumar Sambhudayal Gupta & Ors. V/s. State of Maharashtra, 2011 ALL MR (Cri) 288 (S.C.), in which it has been held, while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor ...208/
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contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. (vi)
Balaka Singh & Ors. V/s. The State of Punjab, 1975 CRI. L.J. 1734, in which it has been held, “while appreciating the evidence Court must make attempt to separate grain from chaff”.
All the cited supra rulings are on the principles of Law. They are applicable to the prosecution case though cited by the defence. (D)
Ld.Counsel Shri S.R. Pasbola placed reliance on :
(i)
Bhairon Singh V/s. State of M.P., 2009 Cri. L.J. 3738, in this case it is held, “declaration as it must be that there is no an iota of evidence which can be admitted in Law to be used against the accused. Thereby it becomes irrelevant by itself and cannot be admitted in Law.” (ii)
Life Insurance Corpn. of India & Anr. V/s. Rampal Singh Bisen,(2010)4 S.C.C.(Cri) 491, in this case it is held, regarding the admission and denial of the documents in the CPC as well as in the departmental inquiry. (iii) J. Yashoda V/s. K. Shobha Rani, (2007)3 SCC(Cri)9, in this case the admissibility of primary evidence and secondary evidence has been discussed in the civil appeal. ...209/
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I have gone through the above cited rulings, in which the principles laid down are in respect of the admissibility of documents etc. is not helpful to the accused as the facts of the case in hand are altogether different. 247.
The cardinal principles of conspiracy has been exhaustively laid down by Hon'ble Supreme Court in : State through S.P., CBI/SIT v/s. Nalini & Ors., JT 1999 (4) SC 106,
The principles governing the law of conspiracy may be summarized though, as the same implies, a summary cannot be exhaustive of the principles:
i. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offences of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be
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committed.
ii. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
iv. Conspirators may, for example, be enrolled in a chain – A enrolling B, B enrolling C, and so on ; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella spoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
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v. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
vi. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
vii. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself
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but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders”.
viii. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
ix. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by
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any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a coconspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
x. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect is guilty though he intends to take no active part in the crime. All these principles has been duly proved by the prosecution in the case in hand and thereby, the law laid down in the cited supra Nalini's case is perfectly applicable to the case in hand.
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248.
At the end, it is necessary to summarise the conclusions based on the evidence on the record. It is admitted on record that deceased Suresh Bhagat was running the mataka Business. His father was also running the mataka business. He was having huge property in Bombay and Gujarat i.e. flats, shops, Villas, landed property as well as chemical and gems business. Defence also admitted the dispute on account of the deceased's huge property. It is undenied that accused no.7 Jaya Chheda was his divorcee. It has been established that accused Suhas Roge called P.W.05 approver Kiran Pujari at the house of Jaya Chheda to grab the mataka business of Suresh Bhagat. In that meeting, Jaya Chheda, Suhas Roge and Hitesh Bhagat were present. They also planned to kill him while returning from Alibaug Court and requested P.W.05 approver Kiran Pujari to help them politically as well as to the police authorities, to which he agreed. Accordingly, they made various traps and hatched the conspiracy. Deceased Suresh Bhagat lodged various complaints against his wife accused no.7 Jaya Chheda, Hitesh Bhagat, accused no.4 Suhas Roge and approver Kiran Pujari about the threats to his life as well as impleaded him in narcotic and arms cases.
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249.
It is also found that accused Suhas Roge introduced accused Harish Mandvikar to Jaya Chheda. As a result of which accused Suhas Roge paid cash to the accused Harish Mandvikar from time to time. Accordingly, Harish Mandvikar also contacted with P.W.62 Ajimuddin Shaikh to hand over the truck for Rs.10 lakhs. When P.W.77 Anthony and P.W.67 Ganesh went to the house of approver Ajimuddin Shaikh to hand over cash of Rs.10 lakhs, he refused to accept the same saying that instead of one, seven persons were killed. This material piece of evidence clearly transpires their meeting of mind for the commission of murder of one person.
250.
The further conclusion is that accused Harish Mandvikar deputed accused no.1 Pravin Shetty to execute the plan on Alibaug
Pen Road. Accordingly, on previous date of incident i.e. on 15/5/2008, they took the truck but invain. Therefore, on 13/6/2008, they again obtained the truck from approver Ajimuddin Shaikh. It has come in the CDR that accused were in constant touch with each other as well as with the witnesses P.W.77 Anthony, P.W.02 Adv. Somet Shirsat as well as with approvers P.W.62 Ajimuddin and P.W.05 Kiran Pujari. The CDR as well as cell site list and cell Id report clearly shows that they were in contacts with each other at different times and on ...216/
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different locations. It has also brought on record that accused Harish Mandvikar was instructed accused no.1 Pravin Shetty on his mobile continuously from 8.33 a.m. to 1:12:32 p.m.. Thereafter, there were no contacts between them till accused no.1 Pravin Shetty reached the Hotel Sai Kutir, at about 2.30 p.m. and he made the contact to accused Harish Mandvikar. The said information had been received by Poynad police station, at about 1.45 p.m.. The contacts between accused on the basis of CDR clearly transpires that accused Harish Mandvikar was in touch with accused no.1 Pravin Shetty as well as with Suhas Roge. The CDR of mobile no. 9867547490 (Exh.709) and cell Id (Exh.701) of accused no.5 Kiran Amle used by accused no.3 Harish Mandvikar while travelling in Maruti Zen car bearing no.MH04BS9412 chasing Scorpio of deceased Suresh Bhagat has been brought on record. The user of the mobile was proceeding from Alibaug towards Pen and while travelling, user reached at or about 1:12 p.m. in the close vicinity of the place of occurrence. The CDR of mobile no.9967736462 (Exh.702) of accused no.1 Pravin Shetty, who was driving the truck from opposite direction also fixes his location from Pen side and at the time of the incident, at the place of occurrence. Except for the conspiracy, this would not have been so. Accused Suhas Roge was in contact with accused Kiran Pujari and thereby, he called him near Rani Baug. By exchanging the seats of ...217/
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the vehicles, Kiran Pujari received the information from Suhas Roge and assured as agreed. 251.
It has also been proved that immediately on the same day, in the evening, accused Suhas Roge went to the house of Jaya Chheda with P.W.15 Vinod Naik. By paying an amount of Rs.1000/, accused Suhas Roge handed over a bag of cash to P.W.15 Vinod Naik with a direction to reach near 'McDonald', Borivali and handed over the same to one Gotya. By confirming Gotya, P.W.15 Vinod Naik handed over the cash which was received from the house of accused Jaya Chheda. Later on, at about 10.30 a.m., P.W.15 Vinod Naik, P.W.16 his driver Joseph Rodrigues met at the house of witness Sanjay Shirke. While watching T.V., accused Suhas Roge passed remarks about the death of Suresh Bhagat that “Amhi amchya dushmanala khalas kele”. The said remark is nothing but the extra judicial confession of accused Suhas Roge before the prosecution witnesses. It has also brought on record that on the next day, accused Suhas Roge called P.W.16 Joseph Rodrigues and proceeded towards Bhayender. After taking tea, bag of currency notes containing of Rs.1000/ denomination was exchanged from TATA Sumo of Suhas Roge and handed over to the accused Harish Mandvikar. Thereafter, they proceeded to Ghodbandar to Mulund. Where Kiran Pujari was ...218/
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waiting at Mulund Checknaka with his vehicle. All these circumstances clearly shows that accused hatched conspiracy to kill deceased Suresh Bhagat and successfully executed the plan. Thus, it is obvious that the murder of the deceased Suresh Bhagat was committed in premeditated and calculated manner. 252.
In view of the above, I am of the opinion that it is not mere accident. It is a clear cut case of conspiracy, which is mainly based on the circumstances. Thereby, prosecution successfully proved that the death of the deceased Suresh Bhagat and six others is not accidental but homicidal. Hence, I answer point no.1 accordingly.
253.
In view of the discussion made above, prosecution successfully proved the hatching of conspiracy as well as the circumstances which are brought on record. All the circumstances clearly shows that prior to 13/6/2008, accused no.4 Suhas Roge, Jaya Chheda, Hitesh Bhagat and approver Kiran Pujari hatched the conspiracy with accused Harish Mandvikar, Pravin Shetty as well as Kiran Amle and approver Ajimuddin Shaikh. As a result of conspiracy, it was successfully executed on the day of the incident, at about 1.15 p.m., within the vicinity of Village Shahbaj on Alibaug
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Pen Road and thereby, accused no.1 Pravin Shetty gave dash to Scorpio jeep of Suresh Bhagat, in which Suresh Bhagat and six others were killed. Although, the conspiracy was only to kill Suresh Bhagat, the intention to kill him and others is obvious from all the circumstances of the case. The accused persons must be attributed intention even to kill other passengers in Scorpio in the nature of conspiracy hatched by them to kill Suresh Bhagat, when he was travelling in Scorpio with others. Thereby, prosecution proved that accused in furtherance of their common intention committed murder of deceased Suresh Bhagat and six others with their common intention. Hence, I answer point nos.2, 3 and 4 are in the affirmative.
254.
After having held all the accused guilty of the offences punishable u/s. 120B, 302 r/w. 34 of IPC, it is necessary to hear the accused on the point of quantum of sentence. The matter stands adjourned for the same on Monday i.e. on 29/7/2013.
Date : 26/7/2013
(S.G.Shete)
Addl. Sessions Judge
Gr.Bombay.
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255.
AS TO POINT NO.5 :
I have heard the accused on the point of quantum of sentence. They submitted that they are innocent and prayed for leniency. Accused no.1 Pravin Shetty submitted that his father and mother are aged about 59 years and 50 years respectively. They are dependent on him. Hence, he prayed for leniency. Accused no.3 Harish Mandvikar submitted that his father and mother are aged about 65 years and 56 years respectively and they are dependent on him. Accused no.4 Suhas Roge submitted that his wife and minor daughter are dependent on him. His parents are no more. Accused no.5 Kiran Amle also prayed for leniency and submitted that his sister and two kids of his late brother are dependent on him. Accused no.7 Jaya Chheda submitted that her mother is aged about 80 years. Her family is consisting of her son accused no.8 Hitesh Bhagat as well as his mother. Considering her age, she prayed for leniency. Accused no.8 Hitesh Bhagat submitted that on the day of the incident, he was abroad. His age is only 33 years. Except his mother accused no.7 Jaya Chheda, nobody is behind him and thereby, he prayed for lesser punishment.
256.
Learned Spl.P.P. Ms. Kalpana Chavan for the prosecution submitted that accused hatched the conspiracy and committed the ...221/
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cold blooded murder. To kill Suresh Bhagat, they chose specific vehicle viz. truck and place of occurrence on PenAlibaug Road. The Scorpio was rammed by the truck trying to give colour of accident and thereby six innocents including Advocate and body guard were killed. The offence is heinous. Six innocents are brutally murdered by the accused by hatching conspiracy. Thereby, it is the rarest of rare case and hence, prayed to sentence them till death.
257.
In reply, Ld.Sr. Advocate Shri Adhik Shirodkar for accused no.4 submitted that the case is purely based on the circumstantial evidence as well as the testimony of the approvers. Murder is always heinous crime and brutal. It is not the criteria for rarest of rare case and therefore, the death penalty is not proper and justified. Most of the accused are between 30's. Theory of reformation and rehabilitation is applicable to the case in hand as there is no previous antecedents. While awarding the death sentence, it is necessary to record special reasons. Hence, he prayed to grant minimum sentence. 258.
Ld. Counsel Shri S.R. Pasbola for accused no.7 reiterated the same arguments and submitted that number of death has no criteria for granting death sentence. Heinous crime is also no criteria ...222/
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for the principle of rarest of rare case. At the relevant time, accused were not knowing that seven persons are traveling. There was no conspiracy to kill those seven persons. The accused are not menace to the society. Hence, he prayed to grant lesser punishment.
259.
Ld. Advocate Shri A.R. Rasal for accused no.1 also adopts the arguments. He submitted that accused no.1 was not having knowledge of occupancy of seven persons in the Scorpio. He was not having intention whatsoever of the act and thereby, benefit of doubt be given to the accused. It is not the rarest of rare case and therefore, prayed to grant the lesser punishment.
260.
Ld. Advocate Shri Taraq Sayyed for accused no.8 submitted that merely because exemption application was filed in Alibaug Court with a wrong reasons cannot be a circumstance to show his indulgence in the crime. Hence, he prayed for leniency.
261.
Ld. Advocate Vilas Naik for accused no.3 submitted that parents of the accused are old aged and dependent on him. He is below 30 years. He was married on 18/5/2008. Only 15 to 23 days he enjoyed the married life. It is not the rarest of rare case and ...223/
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therefore, capital punishment cannot be imposed. It is a fit case to apply the principle of doctrine of rehabilitation. It is the first offence of the accused. There is no criminal antecedents. Hence, he prayed for leniency.
262.
Ld. Advocate Shri Amit Munde for accused no.5 advanced arguments that accused is a young boy i.e. 32 years and unmarried. His sister and two kids of late brother are dependent on him. There is no criminal antecedents and it is his first offence. It is not the case of rarest of rare and therefore, he prayed to grant lesser punishment.
263.
(A) Ld. Sr. Advocate Shri Adhik Shirodkar placed reliance on : Oma alias Omprakash and another s/. State of Tamil Nadu (2013) 3 SCC 440
(B)
Ld. Counsel Shri S.R. Pasbola placed reliance on :
Santosh Kumar Satishbhushan Bariyar v/s. State of Maharashtra
(2009) 2 SCC (Cri) 1150
(C)
Ld. Advocate Shri Rasal placed reliance on :
Shankar Kisanrao Khade v/s, State of Maharashtra
2013 Cri. L.J. 2595
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I have gone through the above cited rulings. The principles laid down in the above cited rulings are extracted from Bachan Singh's case – 1980 (2) SCC 684, relevant portion of which is quoted for ready reference:
“The rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in a category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotespque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded”.
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264.
Having regard to the facts and circumstances of the case and submissions of the accused as well as submissions of the learned Counsels for the parties, it is obvious that most of the accused are between the age of 30 to 35 years. They are young. Their parents are dependent on them. Nothing is filed on record in respect of previous antecedents of the accused. The mandate of Section 354(3) and 235(2) of Cr.P.C. requires mentioning of special reasons for a death penalty and the court must pay due regard both to the crime and criminal. In Bachan Singh's case lays down that if the crime results in intense and extreme indignation of the community and shock the collective conscience of the society as well as the crime is committed in a most cruel and inhuman manner which is an extremely brutal is not a ground for awarding the death sentence. Even when, it has come on the record that the crime committed by the accused is of hatching conspiracy and killed the Suresh Bhagat and six other innocent, applying the principle laid down in the above said ruling to the case in hand, this case cannot be said to be rare case. In the circumstances, I am of the opinion that punishment of life imprisonment will meet the ends of justice.
265.
Before parting the order, it is necessary to mention that nobody claimed the muddemal i.e. amount of Rs.23.50 lakhs and Rs.8 ...226/
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lakhs. Father of the approver Kiran Pujari had claimed the amount of Rs.4 lakhs vide application (Exh.189), but it was rejected. At the same time, cash of Rs.11.39 lakhs and wrist watch of accused Hitesh Bhagat were returned to his maternal aunt Asha Bhatt on a bond of 'supratnama', as the said property is not concerned with the crime. Motor vehicles i.e. Maruti Zen car no.MH04BS9412, SkodaMH01
PA6093, Car MH43N4060, Car MH43V4060, Car MH01KA
4545, car MH01AC123, are returned on bond of Supratnama to the respective owners. Therefore, it is necessary to pass the order in respect of disposal of property to that effect. Resultantly, I proceed to pass the following order :
ORDER
1.
Accused no.1 Pravin Dayanand Shetty, Age 35 years, Occ. Driver, resident of Kandivali (W), Mumbai, Original R/o. Anandnagar, Kariyakal, Taluka Karkla, District Udipi, Karnataka, accused no.3 Harish Rama Mandvikar, Age 33 years, Occ. Electrician, R/o. Bharti Chawl, Room No.42, 1/9, Indira Nagar, Borsapada, Kandivali (W), Mumbai 400 067, accused no.4 Suhas Mahadev Roge, Age 42 years, Occ. Hotel Business, R/o.3/B, Dadyseth Wadi, Siri Road, Band Stand, Girgaon Chowpati, Malbar Hill, Mumbai 400 006, accused no.5 Kiran Baban Amle, Age 36 years, Occ. Cable Business, R/o. Room no.1, Bhaskar Kolekar Chawl, Navagaon, Laxman Mhatre Road, Dahisar (W), Mumbai 400 068, accused no.7 Jaya Talakshi Chheda, Age 49 years, R/o. 126, Room No.3518, Pantnagar, Vishal Housing Society, Ghatkopar (E), ...227/
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Mumbai and accused no. 8 Hitesh Suresh Bhagat, Age 33 years, Occ. Share Trading, R/o. 212, Jayant Villa, 4 th floor, Opp. Worli Market, Worli, Mumbai 400 018, are hereby convicted under Section 235 of the Criminal Procedure Code for the offence punishable Under Section 302 r/w. 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.20,000/ (Rupees twenty thousand only) each, in default to suffer Simple Imprisonment for one year.
2.
Accused no.1 Pravin Dayanand Shetty, accused no.3 Harish Rama Mandvikar, accused no.4 Suhas Mahadev Roge, accused no.5 Kiran Baban Amle, accused no.7 Jaya Talkshi Chheda, and accused no. 8 Hitesh Suresh Bhagat, are hereby also convicted under Section 235 of the Criminal Procedure Code for the offence punishable Under Section 120B of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.20,000/ (Rupees twenty thousand only) each, in default to suffer Simple Imprisonment for one year.
3.
Both the sentence shall run concurrently.
4.
The set off be given u/s. 428 of the Criminal Procedure Code.
5.
Bail bonds of approver Kiran Pujari and Ajimuddin Shaikh stand cancelled, after the period of appeal is over.
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6.
Muddemal property i.e. mobiles Article nos.4,5,6,7,8,9,10,11,13 colly., 17 18, 23,24,30,31 and unmarked mobiles i.e N1100, N73, N
6110, Samsung, wrist watch of 'Citizen' and 'Rolex' make, be sold as per law and its sale proceed be credited to the State. SIM cards in the mobiles, if any, be destroyed, after the period of appeal is over.
7.
Muddemal property i.e. pistol, six live cartridges and chopper (dagger) be sent to the Commissioner of Police, Mumbai, for disposal according to law, after the period of appeal is over.
8.
Mummdemal Article no. 25 Nike Bag and various articles viz. wrappers, being worthless be destroyed, after the period of appeal is over.
9.
Muddemal Article i.e. amount of Rs.23.50 lakhs and Rs.8 lakhs as well as Rs.4 lakhs which is in F.D.R., be credited to the State, after the period of appeal is over.
10. Documents i.e. Article 1 colly., Article 1/1 xerox copies of air ticket, Article 16 pages 155 to 175, Article 26 colly., Article 28 toll receipt, Article 33 cutting of MidDay, Article 38 letter issued by Mid
Day, X53 xerox copy of Mid Day newspaper, application (Exh.850) be kept with “C” file.
11. Muddemal Article i.e. cash Rs.11.39 lakhs and wrist watch of Hitesh Bhagat, Maruti Zen car no.MH04BS9412, SkodaMH01
PA6093, Car MH43N4060, Car MH43V4060, Car MH01KA
4545, car MH01AC123, are returned on “Supratnama”, be retained. “Supratanama” stand cancelled, after the appeal period is over.
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12. Muddemal articles i.e. truck no.MH04CA4445, Scorpio jeep no.MH01AC2475 and car bearing no.MH04AP4563 be sold as per law and its sale proceeds be credited to the State, after the appeal period is over. 13. Copy of the judgment be immediately given to the accused free of cost.
Date : 31/07/2013
(S.G.Shete)
Addl. Sessions Judge
Gr.Bombay.
.../